I have been served with Court of Protection Statutory Will proceeding documents, what happens next?

Receiving a large bundle of Court of Protection documents in the post can be overwhelming and sometimes confusing. The first thing to do is not panic!

The keywords you are looking for in the covering letter are:

• Statutory Will proceedings
• Respondent

What is a Statutory Will?

A Statutory Will is a Will made by the court for someone who lacks capacity to give instructions for a Will. A Will is a document that sets out what will happen to a person’s assets and affairs in the event of their death.

If someone does not have capacity to give instructions for a Will, the Court of Protection can give authority for a Will to be made if it is in the best of interests of the person who lacks capacity. If someone already has a Will, it may be that the Will is no longer valid, for example, all the beneficiaries have died, or there are reasons to challenge the validity of the Will. It might be that someone has never had a Will before, but they need one because what would happen to their estate if they died without a Will would not be right. This is not an exhaustive list and there can be many reasons why a Statutory Will application is made.

A Statutory Will application is normally made by a person’s deputy or attorney. Family or friends could also make an application.

Respondent to a Statutory Will application

A respondent to a Statutory Will application is served with documents in relation to these proceedings because they are a beneficiary under the current Will or under the law if there is no Will (under legislation called the intestacy rules) or they are a proposed beneficiary of the Statutory Will.

All respondents who receive the paperwork are encouraged to complete the COP5 form. If you do not complete the form, the court will presume that you consent to the proposed Will. Be warned, not completing the COP5 may prevent you from being involved in the proceedings later.

As a respondent, you are entitled to obtain your own independent legal advice in relation to your position as a beneficiary or proposed beneficiary. The solicitor’s firm who has sent you the bundle of documents represents the person who lacks capacity, not any respondents.

Statutory Will proceedings

The general rule in Statutory Will proceedings is that the costs of respondents’ legal advice are paid for by the person who lacks capacity. The exception to this rule is if a respondent acts unreasonably and a costs order is made against them.

If a costs order is made against a respondent, they are personally liable to pay this – good advice and sensible consideration of the proposed Statutory Will will best protect a respondent from a costs order.

Remember, the role of the court is to make a Will in the best interests of the person who lacks capacity – their best interests may not be what you, as a respondent might think but your thoughts and views will usefully assist the court to make the best possible decisions.

For more information

If you would like to find out more information about Court of Protection Statutory Will proceedings or representation if you are a respondent, please contact Puja Desai, Douglas Houghton or Donna Holmes.

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