The law is full of fascinating and quirky oddities. One that is little known is that a court has the power to make a will for you – without you knowing anything about it.

A ‘statutory will’ can be made for someone who lacks mental capacity to make a will themselves. In order to make a valid will, you need to have ‘testamentary capacity’ which means that the person making a Will needs to be capable of understanding:

1. 1. The nature of his or her act and its effect.
   2. The extent of the property of which s/he is disposing.
   3. The claims to which s/he ought to give effect.

A recent case of mine illustrates the reasons why it may be important that a statutory will is made for someone. ‘Mrs Brown’ was a widow whose husband, Graham, died in 2001; she has no children or other close family. She made 2 wills; in 2008 and 2013. In her 2008 Will Mrs Brown left everything she had to charity. However in her 2013 Will she changed her wishes and left all of her estate to a friend of hers, ‘Mike Rowley’.

At around the same time as the 2013 Will was made, Mrs Brown made a Lasting Power of Attorney (LPA) in relation to her property and financial affairs in favour of Mr Rowley.  It seems that he and Mrs Brown had recently become close friends – there was no suggestion of a romantic relationship but neighbours did express concerns about his motives to this firm, as Mrs Brown’s solicitors. He had provided her with practical assistance, for example in the garden but he had also been seen driving around in an expensive car. There were suspicions that that he was misusing Mrs Brown’s money for his own benefit.

At first Mr Rowley was a regular visitor when Mrs Brown moved into residential care in October 2015.  Then his visits tailed off.  Because of our concerns about Mr Rowley we applied to the Court of Protection to remove him as an attorney. Because Mrs Brown had by now lost mental capacity to make financial decisions, the Court replaced him with a Deputy, a solicitor, who assumed responsibility for managing her finances.

In 2018, after 3 years of no contact, the Deputy felt that it was no longer appropriate for Mr Rowley to benefit from Mrs Brown’s estate on her death. A very common reason for making a statutory will is where someone who had capacity would naturally have reviewed their will eg, after a significant life event or some change in their circumstances.  The prolonged lack of contact between Mrs Brown and Mr Rowley did amount to a change in circumstances, especially in view of the very different provisions made by the 2008 Will (where the estate was divided between 4 charities) and the 2013 Will, leaving everything to Mr Rowley.

A statutory will can also be an important remedy where financial abuse has been proved or has been suspected to have taken place.

An application was therefore made to the Court of Protection for a statutory will to be made, supported by medical report which confirmed that Mrs Brown lacked ‘testamentary capacity’ and so could not make a new will herself. Interestingly, it was not relevant to the Court that her decision to make the 2013 Will may have been an unwise decision.  The point was that the circumstances in which the 2013 Will was made had changed, as Mrs Brown no longer had regular contact with Mr Rowley and/or there were legitimate suspicions about his conduct towards her. The Court of Protection had to decide whether making a statutory will was in Mrs Brown’s ‘best interests’ which included taking account of her past wishes. Mr Rowley was made aware of the application to the court but decided not to oppose it.

A statutory will was approved by the Court in similar terms to the 2008 Will last week. In this way, Mrs Brown while entirely unaware of the matter, was treated with dignity and respect by the law – and her legacies to charities will be a fitting memorial for her. She sadly passed away as I was writing this article.

Sarah Young

Director & Solicitor