What is a Statutory Will?

We all understand the importance of making a

Will and yet most adults in England and Wales have
still not done so. What happens if you need to make
a Will or change an existing Will but no longer have
the capacity (known as testamentary capacity) and
understanding to do so?

The Court of Protection has powers under the Mental

Capacity Act 2005 to authorise the making of a Statutory
Will. This has the same effect as any other Will but is made
with the authority of the Court following an application
by an interested party. This could be a family member,
beneficiary, attorney, deputy or any other person with an
interest in the Will being made.

Why should a Statutory

Will be made?
There are numerous reasons for making a Will:

• An existing Will may need to be changed due

to changing circumstances, whether family or
financially related.

• The family situation is complicated and you want to

try and avoid a dispute after death or you may have
doubts over the validity of an existing Will.

• You want to make sure the estate is dealt with in

as tax efficient way as possible.

• Or it may simply be that a Will has never been

prepared before. This may be the case for adults
and will be the case for those who lack capacity
when they are children. An application can be made
once the interested party becomes 18.
The court The team
application process For further information please contact
a member of the team.
The application process is lengthy and time
consuming but we have many years’ experience of
preparing and submitting such applications. We will
instruct an appropriate expert to prepare a medical
report assessing testamentary capacity and then work
with you to prepare the application papers, draft a
suitable Will and gather all the evidence in support.
As specialist private client lawyers we also advise you
on the tax implications of any proposal.

The Court has to be certain that the proposed Will is

Simon Hardy Anita Gill
in the best interests of the person who lacks capacity. Partner Partner
Their wishes and feelings are extremely important and shardy@kingsleynapley.co.uk agill@kingsleynapley.co.uk
we take the time to obtain these (wherever possible),
as well as listen to your views and ensure these are all
taken into account.

When money is involved then it is sometimes the case

that the application becomes contentious. We will
represent your interests robustly and fight hard for
the right outcome. However, we always consider
alternative means of resolving the dispute and look
for cost effective solutions. It does not help anyone
to keep fighting for the sake of it. Jemma Garside Sameena Munir
Senior Associate Associate
jgarside@kingsleynapley.co.uk smunir@kingsleynapley.co.uk

Lauren Eyre Sophie Cook

Associate (FCILEx) Associate (FCILEx)
leyre@kingsleynapley.co.uk scook@kingsleynapley.co.uk

Kingsley Napley LLP

Knights Quarter, 14 St John’s Lane
London EC1M 4AJ
T +44 (0)20 7814 1200
F +44 (0)20 7490 2288
DX 22 Chancery Lane
E enquiries@kingsleynapley.co.uk

kingsleynapley.co.uk

Kingsley Napley LLP is authorised and regulated by the

Solicitors Regulation Authority, registration number 500046.
Why should you make a
Will and what should you
consider as a parent of
a disabled child?
If you die without a valid Will, your assets will pass in
accordance with the intestacy rules. Contrary to popular
belief, your whole estate does not pass automatically to
your spouse or civil partner. Your children will inherit
part of your estate. On the death of the surviving spouse
or civil partner, everything passes to your children.

When you have a disabled child, there are many

reasons why it is not appropriate for that child to
directly inherit a potentially large sum under your
Will. Firstly, it may adversely affect any means
tested benefits or local authority funding that your
child receives. As they are a vulnerable person, it
may also leave them open to financial abuse from
others. Last but not least, they may well not have
the capabilities to manage their inheritance.

It might be tempting to leave a gift of a certain

amount to a relative, with the hope or condition
that they ‘look after’ those funds on behalf of your
disabled child. This is not something we usually
recommend and involves an element of risk. The
request is not binding and they are not obliged to
use the funds in the way you wish. Those funds
will be treated as part of that relative’s estate and
may no longer be available to your child if they die
themselves. The fund could also be depleted in
the event of that relative’s bankruptcy or divorce.
Key considerations The team
Trust for disabled beneficiaries The private client team at Kingsley Napley regularly
An alternative is to include a trust in your Will, to which prepares Wills and Letters of Wishes which are tailored to
your whole estate or your disabled child’s notional share individual circumstances. They are experts in working with
of your estate would fall on your death. This would families with disabled children. For further information
protect the funds from the risks outlined above as the please contact a member of the team.
trustees have a legal obligation to manage the funds in
accordance with the terms of the trust. It also provides
flexibility to cater for uncertainty over what your child’s
needs are going to be in the future. You could also provide
for what happens to the ‘trust fund’ in the event of your
child’s death.
It is also helpful to have a Letter of Wishes alongside
your Will, in which you explain the reason for the trust and
how you intend for it to be used. While such a letter is not
binding, it serves as useful guidance to your trustees.
Simon Hardy Anita Gill
Trustees Partner Partner
shardy@kingsleynapley.co.uk agill@kingsleynapley.co.uk
Your choice of trustees is key, as these are the people
who would look after funds for your child. Ultimately,
you should choose individuals that you trust completely.
Often, people choose a family member, along with a
trusted professional such as their solicitor or accountant,
to provide impartial advice and guidance.

Guardians
If your child is young, you may state in your Will who
should act as guardians in the event that both parents
die while they are under the age of 18. Jemma Garside Sameena Munir
Senior Associate Associate
jgarside@kingsleynapley.co.uk smunir@kingsleynapley.co.uk

Lauren Eyre Sophie Cook

Associate (FCILEx) Associate (FCILEx)
leyre@kingsleynapley.co.uk scook@kingsleynapley.co.uk

Kingsley Napley LLP

Knights Quarter, 14 St John’s Lane
London EC1M 4AJ
T +44 (0)20 7814 1200
F +44 (0)20 7490 2288
DX 22 Chancery Lane
E enquiries@kingsleynapley.co.uk

kingsleynapley.co.uk

Kingsley Napley LLP is authorised and regulated by the Solicitors

Regulation Authority, registration number 500046.