Case study: statutory wills

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Under the Mental Capacity Act 2005 the Court of Protection has the power to order execution of a Will on behalf of a person who lacks capacity (referred to as “P”). Therefore, if you have concerns about the Will of an individual who lacks capacity and you fall in to one of the following categories of person, you may be able to apply to the Court for execution of a statutory will:

  • You are P’s deputy; or
  • You have a have registered lasting power of attorney/ enduring power of attorney for P; or
  • You may become entitled to any of P’s property/ interest in P’s property under P’s last known Will; or
  • You are a person for whom P might be expected to  provide for if he had capacity to do so.

Providing the Court of Protection considers a statutory will to be in P’s best interests, the Court will make an order for execution of a statutory will if P:

  • Does not have a Will; or
  • Has a Will but there has been a significant change in P’s circumstances and P might be expected to review their own arrangements; or
  • Has a Will but the Court is satisfied that the Will was executed under undue influence or when P lacked capacity.

In early January 2014, Trethowans' Commercial Litigation team in Salisbury, headed by Ian Singleton, successfully settled a statutory will application for our client (“A”). A is the closest living relative and Deputy for “P” who suffers from Alzheimer’s disease.

P had made her Will in 2005. The 2005 Will had made provision for specific gifts, including a gift of a nest of tables to R and legacies to A, A’s wife and children, P’s godchildren and a range of charities.

Prior to making her Will in 2005, and since the death of her husband, P had formed a close friendship with R. R frequently visited P and took her on holidays. However, in 2008, at the behest of R, P changed her Will. P’s 2008 Will contained significantly different legacies including leaving over half her estate to R.

A’s suspicion was aroused in 2010, when it transpired that R was attempting to take a mortgage out over P’s property. P was then moved to a care home and R let P’s property and mismanaged P’s finances. R failed to pay P’s care home fees and failed to account for the rental income received from letting P’s house.

A was referred to our Commercial Litigation team in November 2012 and an application was sent to the Court of Protection. The Official Solicitor was joined to proceedings as the representative of P’s best interests.

In November 2013 the Official Solicitor visited P and concluded she did not have capacity and despite R’s objections to the execution of the statutory will, the Official Solicitor concluded that when P changed her Will in 2008 she had been subject to R’s undue influence. The matter has now been resolved without the need and expense of a final hearing and A has executed a statutory will (which reinstates the provisions of the 2005 Will)  on behalf of P.