What is a Statutory Will or Codicil?

A Statutory Will (or Codicil that seeks to amend the provisions of an earlier Will) is a document that the Court of Protection can effectively authorise for someone that has lost mental capacity who cannot change or make a new Will for themselves.

When would it be necessary to apply for a Statutory Will?

Normally, this will be done if the person that has lost mental capacity has an out of date Will where they need to make some further or alternative provision in their latest circumstances, which they cannot actually make themselves.

For example, someone may have lost mental capacity and not have a Will at all. Those who have had the greatest contribution to their life may not therefore benefit on the death of the person who has lost mental capacity, and it would therefore be sensible to apply for the Court to authorise a Will to be made making provision for family and those important people.

Alternatively, someone may have had a Will that was in place but they would probably have updated to take into account any change in their estate. An example might be where someone has left a Will giving a property away to certain beneficiaries on their death, but perhaps that property has been sold and the Will does not cover that possibility. The Court could authorise a new gift in the Will in order to address this issue.

Who can apply for a Statutory Will?

Normally, the application will be made by the Deputy, who has been authorised to look after the person’s proeprty and financial affairs, or if they have a Power of Attorney, then the attorney might apply.

What is involved in applying for a Statutory Will?

The procedure is fairly detailed and can take quite some time to complete. I have dealt with numerous Statutory Will applications over the course of time. Initially, a number of forms need to be completed and various family members need to be notified as to what is happening. In addition to the Court of Protection being involved, a further government department known as the Official Solicitor may become involved, especially if matters may not be agreed between the parties involved. The Official Solicitor will be acting technically on behalf of the person that has lost mental capacity. Other family members, or those that could be affected by the application, would normally be joined into proceedings.

It would be necessary for the applicant (either Deputy or Attorney) to supply numerous forms to the court to include a new draft of the Statutory Will or Statutory Codicil.

The Court will then normally indicate what further documents they might like to see before potentially a hearing takes place, unless matters can be agreed by all parties, including the Official Solicitor.

Eventually, provided the wording of a Statutory Will or Statutory Codicil can be agreed, the court will order that it should be signed by the applicant and doing so will create a valid new testamentary document for the person that has lost mental capacity.