Statutory Wills & Trusts

If you are responsible for supporting a loved one because they struggle to make their own decisions, e.g. because of an illness such as dementia or a brain injury, it is worth considering whether they need a Statutory Will. Our friendly Court of Protection solicitors can help you with the application as well as providing personal support along the way.

We understand that you want nothing but the best for your loved one, whether it’s ensuring that their day-to-day life is comfortable or taking steps to sort out end-of-life affairs on their behalf. This can be an emotionally challenging job but you don’t have to face it alone. Our team of specialist solicitors are here to help you make the difficult decisions and handle Court of Protection matters on your behalf, including Deputyship applications and Statutory Will applications.

A person may need a Statutory Will where:

they do not have a Will or it is out of date;
the estate has reduced in value;
the estate has increased in value, for example as the result of a compensation award;
tax planning purposes;
a beneficiary (or beneficiaries) under the existing will have passed away;
a beneficiary under an existing will has received significant gifts, and so the will should be adjusted
and
they lack the mental capacity to make or update their Will.

The Court of Protection exists to protect people who lack mental capacity and make decisions on their behalf. If you are a Court of Protection Deputy or an Attorney under a Lasting Power of Attorney or Enduring Power of Attorney, you can apply to the Court of Protection to make a Statutory Will for them.

For advice about making a Statutory Will, get in touch with our Court of Protection solicitors in Wakefield, Ossett, Garforth, Sherburn in Elmet or Mapplewell, or fill in our online enquiry form for a quick response.

What is a Statutory Will?

The purpose of a Statutory Will is to ensure a person’s final wishes are carried out after they pass away, such as how their money and property should be distributed, even if they cannot express those wishes themselves.

To be able to make a valid Will, a person must be able to understand:

What making a Will means
How much money and property they own
How making or changing a Will might affect certain people such as:
- Anyone included in the Will
- Anyone left out of the Will
- Anyone who would inherit under the Rules of Intestacy

A person may lack the capacity to understand these things for many reasons, including:

An illness such as dementia
A condition such as a stroke
A brain injury
Severe learning difficulties

To make a Statutory Will, you need to apply to the Court of Protection.

Why make a Statutory Will?

Statutory Wills are made for the same reasons a ‘normal’ Will is made – to ensure your loved one’s wishes (or what would be their wishes if they had mental capacity) are respected and followed after they die.

A Statutory Will can also be used to:

Make a person’s estate more tax-efficient, minimising the amount of Inheritance Tax that falls due
Appoint trustworthy executors to administer the estate
Ensure the person’s loved ones are provided for
Set up trusts to protect, preserve and control the way money and property is inherited and handled

How to apply for a Statutory Will

The process of applying for a Statutory Will can be complicated so it is important to consult a specialist solicitor before making the application.

We can discuss your loved one’s needs with you, including whether they have the ability to make a Will themselves, and handle the application process on your behalf. We can guarantee that your application will be handled thoughtfully and completed to the highest standards, giving you the best possible chance of being successful.

We will need to complete a number of forms as well as getting a qualified medical professional (such as your loved one’s GP) to complete their own assessment of capacity. You must also supply various documents to support your application, including:

The person’s existing Will (if there is one)
A copy of your Deputyship Order or Power of Attorney
The new proposed Will or codicil (addition to a Will)
Details of the executors who will handle the estate administration
The person’s family tree
Reasons why the beneficiaries (the people who will inherit) could expect to be provided for
The person’s address and where they are currently living, e.g. a care home or hospital
Information about the person’s assets
Their estimated income and expenditure
Details of Inheritance Tax

You may need to attend a Court of Protection hearing before the Statutory Will can be approved. Usually this is only the case if the Court needs more information or someone challenges the application.

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Why choose our Statutory Will solicitors?

At Thornton Jones, we have been helping individuals and families support their vulnerable loved ones for many years. We understand the need to deliver advice sensitively but in a practical way to ensure you have all the tools to properly care for your loved one and enable them to live life to the fullest.

As well as our Statutory Will expertise, we can provide a wide range of advice on other relevant matters, such as Court of Protection Deputyship, Lasting Powers of Attorney, trust administration, conveyancing (e.g. if you need to sell property on someone’s behalf), and probate and estate administration.

We are members of the Law Society Wills & Inheritance Quality Accreditation scheme for our expertise and efficient turnaround in Wills and probate matters. Our team also includes a qualified member of STEP (the Society of Trusts and Estate Practitioners).

We are regulated by the Solicitors Regulation Authority (SRA) providing assurance that we continually meet the highest legal and professional standards.

Get in touch with our Court of Protection solicitors in Wakefield, Ossett, Garforth, Sherburn in Elmet and Mapplewell

Statutory Will FAQs

What is a Statutory Will?

The Court or Protection can make or change a Will on behalf of someone who lacks the mental capacity to do it themselves.

The ability to make a Will is called ‘testamentary capacity’. A person lacks testamentary capacity if they do not understand:

– What making a Will means
– How much money or property they own
– How making a Will may affect certain people such as:
• People mentioned in the Will
• Anyone left out of the Will
• Anyone who might otherwise inherit if the person died intestate (without making a Will)

Just because someone might struggle to make decisions about their finances does not mean they lack testamentary capacity and they may still be able to express their wishes to make a Will. We can help you assess whether your loved one is able to make a Will or whether you should make an application to the Court of Protection.

The Court of Protection will only make a Statutory Will where it is in your loved one’s best interests and they will put significant value on their known wishes and feelings.

Why make a Statutory Will for someone?

It is usually someone with the authority to make decisions on behalf of the person lacking mental capacity who makes the Statutory Will application – an Attorney under a Lasting Power of Attorney or a Court of Protection Deputy.

It is important to remember that that Attorney or Deputy cannot make a Will on behalf of their loved one without making an application to the Court of Protection, despite having legal authorisation to make other decisions.

Statutory Wills can also be useful for other purposes such as:

– To reduce someone’s liability for Inheritance Tax
– To change a Will that is out of date (for example, because one of the beneficiaries has died)
– To reflect a significant change in value of the estate (for example, because the person received compensation)

Who can apply for a Statutory Will?

How do I make a Statutory Will?

You must complete and submit a number of forms along with supporting documents to the Court of Protection:

– An application form
– A witness statement
– An information form
– An assessment of capacity form

Supporting documents you must provide include:

– A copy of your loved one’s existing Will (if there is one)
– A copy of the proposed new Will
– A copy of your Deputyship Order or Lasting Power of Attorney
– Details of the executors who will administer the estate after your loved one has died
– Your loved one’s family tree
– Reasons why the beneficiaries included in the Will might expect to benefit
– Your loved one’s address or details of where they live (such as a care home)
– Details of your loved one’s assets
– Accounts showing your loved one’s estimated income and outgoings
– Details of any Inheritance Tax your loved one’s estate may become liable for after they die

The Court will consider all the evidence then make a decision in your loved one’s best interests about whether to make a Statutory Will.

Because of the complexity of the application process, it always helps to have an experienced solicitor by your side to help you collate the information and ensure it is accurate.