Statutory wills, resolving will disputes during the testator’s lifetime

When a testator makes a will, they must have the requisite testamentary capacity to do so. If they do not, this may be grounds for a disappointed beneficiary to issue a probate claim to challenge the validity of the will after the testator's death.
 

We are receiving increasing numbers of enquiries relating to statutory will applications in the Court of Protection, effectively asking the Court to make (or remake) a testator’s will while they are still alive on the basis that they lack capacity to do so. This would have the effect of varying a potential intestacy (if P hasn’t made a will), or varying any existing will. The person who lacks capacity and to who an application relates is generally referred to as ‘P’ in the Court of Protection. The Court of Protection will only have jurisdiction to make decisions on P’s behalf if they lack capacity.

Statutory will applications are, often, contentious as between the party who is asking the court to use their discretion to determine whether a statutory will should be made and the other party, who contends that the statutory will should not be made, either because there is an existing valid will, or to make a statutory will would not be in P’s best interests.  There can also be disagreements between the prospective beneficiaries regarding what, if anything, P would wish for each of them to receive under the will.

In certain circumstances, this type of application essentially creates a probate dispute before the testator has passed away. Given the principle of testamentary freedom, questions have been raised over the appropriateness of the Court of Protection being used as a battle ground for pre-death will challenges, particularly in cases where a testator has already made a valid will.

What is a Statutory Will?

If a person who lacks capacity has never made a will, or their existing will no longer reflects what they may want (for example, because the beneficiaries themselves are no longer alive, or the testator's personal situation has significantly changed since they made their will), the Court of Protection may agree that it is in their best interests to make a statutory will.

Applicants can also ask the Court of Protection to consider making a statutory will if there are some concerns, during the testator's lifetime, that the will was made at a time when the testator already lacked capacity and so there is some risk of a post-death probate challenge.

 

The applicable test

The question for the court when considering an application for a statutory will is whether they should exercise their discretion to make a statutory will in accordance with the Mental Capacity Act 2005 and, in particular, section 1 (the principles) and section 4 (what is in P's best interests).

Section 1: The Principles

The overarching principle in Section 1 is that if a person lacks capacity to make decisions then any act done for or on behalf of that person must be done, or made, in their best interests.

Section 4: Best Interests

This section states that, (4(1)) in determining what is in P’s best interests, the person making that determination must not act merely on the basis of someone’s age or appearance or make assumptions about what might be in P’s best interests. Instead, they must consider (4(2)) all the relevant circumstances.

Relevant circumstances for a statutory will application include:

4(6) (a): P’s past and present wishes and feelings (and, in particular, any relevant written statement made when P had capacity);

(b) the beliefs and values that would be likely to influence P’s decision if they had capacity; and

(c) the other factors that P would be likely to consider if they were able to do so.

Section 4(7) confirms that the Court will also have to consider (if practicable and appropriate) the views of the below individuals when deciding what would be in P’s bests interests in accordance with subsection 6 set out above:

(a)anyone named by P as someone to be consulted on the matter in question or on matters of that kind;

(b)anyone engaged in caring for P or interested in his welfare;

(c)any donee of a lasting power of attorney granted by P; and

(d)any deputy appointed for P by the court.

In practice, this may mean any deputies or attorneys who have been appointed on P’s behalf, along with family and friends and beneficiaries who may have been named under P’s earlier and more recent wills who may be affected by making a statutory will.

 

What will the Court consider when it receives an application for a statutory will?

The Court will consider all relevant factors when determining an application for a statutory will, such as:

1. Whether there is a recent will in place

Where there is a recent will in place, a court will generally decline to alter it, even if its’ validity is disputed.

This was discussed in the case of Re Peter Jones [2014] in which it was found that by agreeing to make a statutory will in circumstances where P had recently made a will, this would undermine P’s autonomy and promote a “paternalistic view” of P’s best interests. In summary, the fact that P has made a will which the applicant may not agree with, a statutory will is not an opportunity for the content of the will to be ‘put right’. The purpose of a best interest test is to consider matters from P’s point of view, what they wanted and what they were hoping to achieve with the provisions of their will; this may not necessarily be the same as what the applicant wants P’s will to say.

Evidence of P’s wishes and feelings in this regard can be demonstrated by the content of previous wills (supported by documents in the will file which set out P’s reasoning for leaving their assets as they have).

Acting in a contrary way to that is generally not thought to be in P’s best interests.

2. The potential for future litigation

Generally, if there is a concern that P’s will is invalid, litigation would usually be pursued following P’s death. In statutory will applications, an applicant sometimes suggests that it would be in P’s best interests to order a statutory will to avoid post-death litigation. In other words, it would not be in P’s best interests to be remembered as creating litigation between beneficiaries’ post-death.

In the case of Re P (Statutory Will) [2010], HHJ Hodge QC explained this further, saying:

“Given the importance attached by the Court to the protected person being remembered for having done the "right thing" by his will, it is open to the Court, in an appropriate case, to decide that the "right thing" to do, in the protected person's best interests, is to order the execution of a statutory will, rather than to leave him to be remembered for having bequeathed a contentious probate dispute to his relatives and the beneficiaries named in a disputed will.”

The idea of P having “done the right thing” should be assessed from P’s point of view (rather than deciding whether this is the right thing for the applicant or other beneficiaries).

A difficulty with this approach is that, as in the case of Re M [2011], the Court of Protection held that it did not have the jurisdiction to determine whether P’s will was valid.

The result is that, if the validity of the will is in question, then the court may have to conduct a full examination of the evidence to decide whether there is a risk of a will dispute post-death, and what weight to give to the will as evidence of P’s wishes. This would effectively advance the post-death litigation to a time when the testator is alive. Alternatively, the court could make a statutory will, which would revoke an earlier will but without considering any validity issues with the earlier will if it was considered in P’s best interests to do so.

Although it could authorise a new will to be made and executed, the terms of the statutory will normally factor in the weight given to the previous wills, used as evidence of P’s wishes and feelings. However, the court could also make a statutory will that divides P’s assets in a totally different way to that which P set out in their will.

 

How does the Court go about deciding what is in P’s best interests in circumstances where they are unable to participate in proceedings?

P must be empowered to provide their views to the extent that they are able. Even if P does not have capacity to make a will, he/she may still be able to provide views on the subject or participate in the proceedings through a litigation friend. Regard will also be had to any views expressed by P in the past whether in writing or orally.

Where there is a will in place, it may not be considered to be in P's interests for the Court to order that a statutory will should be made on their behalf, unless circumstances have changed. Of course, if everyone affected agrees that a new will ought to be made, then this is a much more straightforward situation, though it ultimately remains a decision for the Court of Protection.

 

Differences between statutory will application and post-death probate disputes

Costs

One of the implications of a lifetime probate dispute is that, generally, the costs of statutory will applications are paid from P’s estate. In post-death probate disputes, the costs generally follow the usual rule that the losing party pays the winning party’s costs. This may encourage statutory will applications from applicants who would not, otherwise, bring an unmeritorious post-death will challenge, if there was a risk they may have to pay the costs of that claim (both theirs and the other side’s costs).

Timing

Statutory will applications can take months to be dealt with in the Court of Protection, but if P’s health issues are such that they may not have long to live, applications can be expedited and dealt with on an urgent basis. However, post-death probate disputes take much longer often taking years to resolve.

Confidentiality

While hearings normally take place in public in the Court of Protection, the Court will often (though not always) impose orders preventing P and their family from being identified in any reporting in order to protect P, which gives the family greater privacy. In contract, post-death probate disputes including the identity of the parties are often reported on by the press.

 

Conclusion

Considering the above, it is not difficult to see how contentious these types of applications can become, particularly when close family and friends of P disagree on whether something is in P’s best interests.

Taking the above issues into account, it continues to be a matter for debate as to whether the Court of Protection is the appropriate forum to have a will dispute before the testator has passed away. These cases are fact specific and if there are any concerns about how the testator has come to prepare their will, or that their circumstances have significantly changed since they made their will and they now lack capacity to make amendments, legal advice should be obtained on whether a statutory will application should be made.

further information

If you have any questions, please contact Laura Phillips TEP in our Dispute Resolution team.

About the author 

Laura Phillips TEP, is a Legal Director in the Dispute Resolution team. Laura has particular expertise in Contentious Trust and Estate and Court of Protection Disputes.