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Statutory Wills – what are they and why might they be needed?

May 25, 2018

For most people, the idea of spelling out post-death wishes carries very little appeal. Preparing a Will calls for serious consideration of things that many of us would prefer to leave unsaid and unwritten. However, it is the only way of ensuring that the right people stand to benefit in the right ways.

One of the essential aspects of a legally enforceable Will is that the person who made it was of sound mind; they understood what they were writing into their Will, and the implications. So what happens when it is thought that an adult who has possessions – a home, money in the bank – but who doesn’t have the necessary mental capacity, ought to make a Will?

The answer is: a statutory Will. This is a Will that is overseen by the Court of Protection. The Court is under a duty to safeguard the interests of people who have never had mental capacity, and those who once did but, through illness or accident, no longer have it. This duty includes enabling proper provision to be put in place for the fair distribution of a person’s assets once they have died.

Sometimes this means updating an existing Will to better reflect new financial and other circumstances. In other cases it involves writing a Will from scratch. These jobs typically fall within the remit of a Deputy or an Attorney, each of whom has responsibility for acting in the best interests of people who don’t have mental capacity to make important decisions for themselves. It is also possible for family members and friends to instigate and follow through the statutory Will process, and we often help them do this.

One of the challenges for the Court is in ensuring the fair treatment of a mentally incapacitated person, given that their Will-related wishes may not be known. It involves close scrutiny of the individual’s personal circumstances; any feelings they might have expressed that could be relevant to the distribution of their possessions, and the views of those close to them.

It is a careful and thorough assessment of an incapacitated person’s best interests. This focus is usually of great comfort to those who care deeply about people who are unable to speak for themselves as it can provide some peace of mind that there are proper provisions in place.

For further advice on your specific circumstances, contact our Private Client team today who will be happy to help.  Tel: 01264 353411, email:  wills@bsandi.co.uk or complete our no obligation, online enquiry form and someone will contact you.


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