In a perfect world the donor would have an up to date Will though this does not always happen. Time restrictions or big gaps between updates can result in no Will or obsolete Will due to changes in circumstances and the law, such as leaving items to beneficiaries that are no longer around or leaving a specific asset which has been sold.
If the donor then loses capacity they nor their attorneys can make a Will on their behalf, which can lead to contested old Wills, claims against the estate at probate, bottom line a very expensive and distressing time for the family.
When should you make one?
There are no hard and fast rules when you should make a Statutory Will but some examples include:
- When a property (comprising the largest part of the estate) has been left as a specific legacy and the property has to be sold for nursing home fees or otherwise.
- The estate has reduced in value.
- The Donor is a young adult who have never made a will, and he has received an inheritance or personal injury award.
- An existing will names beneficiaries who have died.
- An existing will makes no provision for events that were not anticipated, for instance, a couple has left their estate to one another without providing for a gift on the second death.
- A beneficiary under an existing will has already received substantial gifts and it would be inequitable for the will not to be adjusted to reflect those gifts.
Who can apply?
- a person who lacks or is alleged to lack capacity;
- the donor or donee of a lasting power of attorney (LPA) to which the application relates;
- a deputy appointed by the court for a person to whom the application relates; or
- a person named in an existing order of the court, if the application relates to the order.
- a person who has made an application for the appointment of a deputy for which permission has been granted but which has not yet been determined;
- a person who, under any known will or under his intestacy, may become entitled to any property of the donor or any interest in it;
- a person who is an attorney appointed under an enduring power of attorney (EPA) which has been registered in accordance with the MCA 2005;
- a person who is a donee of an LPA which has been registered
- a person for whom the donor might be expected to provide if he had capacity to do so.
There may be more options available but permission would be needed from the Court of Protection.
What do I need?
The application to execute a Statutory Will is fairly time consuming and as the court may not meet the testator it would need to create “picture” of them, their obligations, their social beliefs etc. so in addition to the application form documents such as the following are also recommended:
- A draft of the proposed new Will and copy of any existing Will
- Consents to act from the proposed executors of the new Will
- A family tree
- A schedule of the assets together with their current values
- A schedule of net yearly income and expenditure
- A statement of the needs of the individual, both current and future, such as care costs
- The resources of proposed beneficiaries, if felt to be relevant
- Details of any tax implications of the proposals
- A report on the medical condition and life expectancy of the individual
You will need to show why making a new Will and the draft Will is in the the Donors best interest and will have to show the Donors character, was he frugal? eccentric? his relationship with individuals shown via witness statements, photographs , Christmas cards etc.
Does anyone else need to be told of the application?
The court will direct you to who should be notified of the application. This is normally people who would be effected by the Will both negatively and positively.
Is there a court hearing?
It is possible for the Will to be finalised without one but in some cases this may not happen and a hearing may be needed.
What happens one a Statutory Will is accepted by the courts?
Once the Will is approved by the court an order authorising its signature, usually by the original applicant. Once signed the court seals the document and it is now a valid Will. This is then normally kept by your solicitor who will then execute it when it is need.
What does it cost?
Depending in the complexity of the work and therefore time required will effect the price. Though an average application can start from about £2000.