Every day, people make Statutory wills to specify their preferences for their affairs and assets in the case of their death.
We’ve all heard of a will and seen the movie stereotype of a family crammed into a lawyer’s office for a contentious ‘will reading,’ which never happens!
But what if a person lacks the mental competence to form a will, to begin with?
Many of our customers are in this predicament owing to several factors, including being born with a handicap, being involved in an accident, or, unfortunately, being diagnosed with dementia.
Legislative Wills or Statutory will explain the responsibilities of the court of protection and why a statutory choice may be required.
The protective court
The court of protection is a specialty court established to defend the interests of persons who lack mental capacity and cannot make confident financial or welfare choices.
When making judgments, the court of protection will consider several issues.
Any decision taken on behalf of or for someone who lacks capacity must be in their best interests.
Is it necessary to involve the court of protection in every decision?
When an attorney or deputy has already been assigned, that attorney or deputy can make some decisions on behalf of the vulnerable person without the involvement of the court of protection.
Regardless matter whether an attorney or deputy is present in Statutory wills.
There are times when the court’s intervention is essential.
This is primarily since an attorney, or a deputy can only do so much, and big decisions require the consent of the court of protection.
The following are some examples of big decisions:
- Making significant donations from the estate of the vulnerable individual.
- Choosing the vulnerable person’s residence (where there is a disagreement).
- Completing and signing a will on behalf of someone weak.
The importance of a Statutory Will
If a person has never created a Will and now lacks the testamentary ability or has an outdated Will, a statutory Will may be required.
If a person dies without leaving a Will, intestacy rules apply, which determine how their possessions should be split.
For many people, the intestacy rules are adequate.
Arthur, for example, cannot form a Will and has never done so. He has three grown children and is a widower.
The intestacy regulations provide that his assets will be shared equally among his children when Arthur dies.
Arthur is unlikely to require a Statutory Will in these circumstances.
If Arthur, for example, had no blood relations but two stepchildren whom he had always considered as his own, his possessions may conceivably transfer to the Crown upon his death.
In those circumstances, it could be good for Arthur to get a Statutory Will so that his stepchildren might inherit the inheritance.
In other situations, an existing Will may be out of date (maybe all of the beneficiaries have passed away), necessitating an application for a Statutory Will.
The court may also approve a Statutory Will for tax planning considerations.
Making a will in a protection court (statutory Will)
When a person loses mental capacity, it is essential to create a choice.
An application must be submitted to the court of protection requesting that the will be executed.
Without the permission of the court of protection, an attorney or deputy cannot carry out a will.
A statutory will is a will that the court has approved of protection, and there are a few circumstances in which one may be required:
The vulnerable individual has never made a will.
The value of the estate has decreased.
As a result of the compensation received, the estate’s value has grown.
Objectives of tax planning.
An existing will’s beneficiary (or beneficiaries) has passed away.
If a beneficiary named in an existing will has already received significant gifts, the Will should be changed.
An item is sold to pay for care in some instances, although the asset was previously subject to a specified donation in the Will.
The application for a statutory will is to provide something to the specified legatee instead of the asset since the asset’s sale negates the specific gift.
If the individual who lacks capacity has never made a will or if their circumstances have changed significantly, the court of protection is more likely to grant a statutory choice.
Questions are often asked about Statutory wills
I look forward to the most critical questions related to our main topic, Statutory wills.
What is the meaning of a statutory will?
If someone wants a Will or needs to make modifications to an existing Will but lacks the testamentary ability to do so.
They can apply to the Court of Protection for approval to have a Statutory Will written on their behalf.
What is the meaning of testamentary capacity?
The legal and mental competence of a person to form or alter their Will is referred to as “testamentary capacity.”
When someone has testamentary capacity.
It implies they have the mental capacity to make decisions regarding the gifts and arrangements in their Will on their own.
Their Will is void if they lacked testamentary competence at the time of writing because they could not make informed judgments.
Is a statutory Will required for someone with dementia?
Dementia comes in a variety of forms and degrees.
Just because someone has been diagnosed with dementia does not imply they cannot make judgments about who should inherit their inheritance in the future.
They could still be able to leave a testimony.
They should, however, seek professional assistance in drafting their Will to ensure that it is both legal and legitimate.
As well as an accurate reflection of their objectives.
How can you tell whether someone has the mental ability to form a Will?
A specific test is used to determine whether someone has the testamentary ability to make a Will.
The examination (in general terms) looks at whether the person knows what drafting a Will entails and what it implies.
As well as if they are aware of the magnitude of their assets and who could expect to profit from their inheritance.
When capacity is in question, this test should be performed by a medical practitioner who should be informed about the procedure.
What distinguishes Statutory wills from a regular Will?
A Statutory Will differs from any other Will in that the Court approves it of Protection.
And signed by the individual who lacks the capacity’s a Deputy or Attorney (appointment under a Lasting or Enduring Power of Attorney).
What is the time frame for obtaining a Statutory Will?
A typical uncontested application (one in which there are no objections to the proposed Will) takes four to six months to complete, depending on the court’s workload.
If there is a reasonable justification, such as the individual without the ability to have a short life expectancy, urgent applications might be submitted.