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Statutory Wills - Assessing capacity and managing risk

31 March 2011

Brian Bacon, Senior Associate, Thomson Snell & Passmore

A statutory will (or codicil) is a testamentary document drawn up and executed on behalf of a person who lacks capacity, under the jurisdiction of the Court of Protection. The authority of the Court now stems from s. 18(1)(i) and Schedule 2, paragraphs 1 to 4, of the Mental Capacity Act 2005 (the Act). Whilst there is no reference in the Act to ‘statutory wills’, this is the term used by the Court and practitioners to set it apart from a will made by a testator with testamentary capacity.

Assessing Capacity and Managing Risk

The case of Banks - v - Goodfellow (1870) 5 QB 549, is the private client lawyer’s equivalent of Boots Cash Chemist in contract law, or Donoghue - v - Stevenson in tort law. The tripartite test of capacity set out by the Lord Chief Justice in Banks has survived 140 years of subsequent case law and legislation, and remains the bedrock of assessing testamentary capacity. In the 2008 case of Scammell v Farmer, the High Court agreed that the test of mental capacity under Section 3 of the 2005 Act could be viewed as a modern restatement of the test propounded in Banks. However, the judge in Scammell, also confirmed that the 19th century case is still regarded as the litmus test for testamentary capacity; the question of capacity at the time a will is made still falls to be determined under existing common law principles.

Banks outlined that a person will have testamentary capacity if they have a sound and disposing mind and memory. This requires the testator to understand three things:
  • The nature of the act of making a Will and its effects;
  • The extent of the property that they will be disposing of; and
  • The claims to which they ought to give effect.

Therefore, if the person concerned, referred to as “P”, wishes to make a Will but you are concerned that they might not meet the Banks criteria, then you must obtain independent medical opinion. For private client lawyers, when considering areas of risk this is imperative. If you have any doubt as to capacity, you must seek medical opinion.

A fundamental principle of the Act is that a person’s capacity to make a decision is issue specific. Accordingly, it is important to point out that just because a client is deemed, under the Act, to be unable to manage their own financial affairs, does not automatically mean they do not have testamentary capacity. Much of my firm’s work involves handling Deputyship matters for clients who have an acquired brain injury or learning difficulties. Whilst they are unable to manage their large damages award, for example, in a number of cases the clients do still have capacity to make a will.

Therefore, the medical evidence obtained must specifically address P’s testamentary capacity; it will be down to the lawyer to properly instruct and educate the medical practitioner as to the three-stage test, and the principles of the Act.

In practice, it is germane to point out that we are experiencing many cases where medical practitioners, GP’s in particular, are unable or unwilling to undertake the assessment. In these circumstances, one option available to the practitioner is to apply to the Court of Protection for a declaration of capacity. The Court can then instruct a Court of Protection medical visitor to visit P.

Where P has capacity

If the opinion is that P does have testamentary capacity, it may be considered wise, in line with the "Golden Rule" set down in Kenward v Adams (1975) to ask that medical practitioner to witness or approve the will. Whilst this does not in itself prove capacity or validity (Cattermole v Prisk (2006)) it will nonetheless provide strong evidence that the issue of capacity has been addressed. Again, from the point of view of risk, and simple good practice, it is imperative that a clear record of correspondence, advice, meetings and conversations are kept – preferably typed given the lawyer’s and medical practitioners penchant for interesting handwriting. These can then easily be referred in the future, in the case of any dispute or query.

Where P does not have capacity

If the opinion is that P does not have testamentary capacity, then the only course of action open will be to make an application to the Court of Protection for a Statutory Will to be drawn up and executed up on P’s behalf.

When should a statutory will be considered?

In my view, a Deputy has a duty to consider whether a mentally incapacitated person’s existing testamentary arrangements need to be reviewed. In a case where the Deputy considers that it would be in the best interests of the person for the existing arrangements to be altered, then it is appropriate for the Deputy to consider applying for the making of a statutory will.

There are various occasions where a statutory will might be in P’s best interests. For example:
  • P’s estate might have increased in value (due to an inheritance)
  • P is a young adult who has never previously made a will
  • The provisions of the existing will or intestacy do not anticipate events which have actually happened and / or it would be inequitable not to alter the provisions

If you are acting as Deputy for a minor, then a statutory will cannot be made. However, the issue should still be on the practitioner’s mind. Particularly in situations where P is under 18 and has received a large damages award, it is important that you make a diary entry in your firm’s central diary system, whether that is electronic, paper, or both. Around 6 months from P’s 18th birthday you should be reminded that an application will need to be made, and preparations should start.


It is not one of the purposes of this brief article to outline in detail the procedure that needs to be followed if a statutory will is required. However, for helpful guidance in this regard there are various practitioner works available which outline the procedure in detail. In addition, any one making an application should have careful regard to Practice Direction 9F; this gives important guidance as to what supporting information is required.

Emergency Applications

It is appropriate to briefly touch on the issue of emergency applications. Practitioners may be asked to assist with a statutory will application where P is in danger of dying before the application can be processed or heard within the usual court timetable. In that situation the Court, and Official Solicitor who will usually be joined to act as litigation friend for P, will do what they can to assist.

However, practitioners should be aware of the case of Re R (2003); if the emergency application is due to the delay of a party (for example a professional not acting with due speed), then that party may be expected to suffer the consequences. Again, this is a salutary reminder to practitioners to handle statutory will applications properly and as expeditiously as possible.

Summary - Risk Management Considerations

In summary, there are five key points from the point of view of risk, for the private client practitioner to bear in mind when considering statutory wills.
  • You will always need to obtain a medical opinion from a suitably qualified medical professional, such as a GP or psychiatrist.
  • If you are a Deputy, you have a duty to review P’s testamentary arrangements.
  • If you are Deputy for someone under 18, ensure the appropriate diary entries are made for the will to be made as soon as possible after they reach the age of majority.
  • Do not delay in making your application, particularly when acting for an elderly client in less than robust health. Otherwise, the application may become an emergency one.
Brian Bacon is a Senior Associate at Thomson Snell & Passmore which has one of the largest specialist Court of Protection teams in the country.

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