Where someone lacks the capacity to execute a will, it is possible to make an application to the Court of Protection to execute a statutory will on their behalf, provided that the person is over 18. A statutory will has the same effect as if that person had the capacity to make a valid will and had executed it in the manner required by the Wills Act 1837.
The test for testamentary capacity is different to the more general capacity test under the Mental Capacity Act 2005 (MCA); it is possible for someone to be incapable mentally of managing their own financial affairs but to have the requisite testamentary capacity to make a will themselves. If this is the case, then although it is not necessary to apply for a statutory will, care must be taken to ensure that the test of testamentary capacity is satisfied.
The test for testamentary capacity:
This is set out in Banks v Goodfellow (1870) as follows:
The person making the will (the testator) must be capable of understanding:
- the nature and effect of making a will (sound mind),
- the extent of his or her property being disposed of (sound memory), and
- the claims of those who might expect to benefit from the testator’s will (sound understanding).
Application for a statutory will:
The MCA sets out the framework for the execution of a statutory will. An application must be made to the court. It is necessary to provide evidence to show that there are grounds for departing from existing testamentary arrangements. The court is more likely to approve a statutory will if the individual has never executed a will or there has been a significant change in his/her circumstances. The court can make a will on behalf of an individual domiciled outside England and Wales, provided the will relates to immovable property inside England and Wales.
Post MCA legal framework:
In the recent case of D v JC & Others, Case No. 11757467, Senior Judge Lush considered the authority of a judge to authorise a statutory will, post the MCA. He made the following useful observations:
- the test for approval of a statutory will prior to the MCA was easier to apply; the judge stood in the shoes of the testator and made a will that he thought the testator would have made if he/she had capacity. The post MCA decisions in Re P and Re M indicate that this is no longer good law. The criterion now is what is in the individual's best interests.
in adjudicating on a statutory will application the judge must have regard to:
- the check list of factors for the best interests' decision as set out in section 4 MCA (which incorporates 'substituted judgment');
- the possible application of the 'balance sheet' approach and the identification of any factors of 'magnetic importance' in assisting the judge in reaching a decision (although Senior Judge Lush did express doubts as to the efficacy of the balance sheet approach in statutory will proceedings);
- the jurisprudence on statutory will applications post MCA.