When someone doesn’t have the mental capacity to make their own Will, the Court of Protection can make a statutory Will on their behalf. The court may also appoint a deputy to look after their affairs.

This ensures the person’s financial affairs are looked after when they are at their most vulnerable, and when they die their estate is dealt with in a way they would have wanted.

As with any Will, however, disputes can happen. You might want to challenge a proposed statutory Will if you’re worried that:

It doesn’t reflect what the deceased would have wanted
The financial deputy is not acting in the person’s best interests
The person has capacity to make their own Will.

The financial deputy may be a family member, or someone else close to the protected person. They must always act in the best interests of that person. It’s important they don’t use the position as deputy for their own gain. If you’re concerned about a deputy’s behaviour, or about any part of the Will itself, we can help.

Our expert solicitors could help you:

Replace the deputy with a professional deputy (such as a solicitor)
Challenge the terms of the Will
Make a claim for financial provision if you haven’t been named in the Will (following the death of the person).

We have the largest Wills, Trusts and Estate Disputes team in the country and we’re experienced in dealing with disputes over statutory Wills and financial abuse. We work closely with our Court of Protection team to support you at every stage.

Call us today on 0345 604 4895 – or fill out our online contact form and we’ll call you back.

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Statutory Will Disputes

- How Do I Contest A Statutory Will?
- Making a claim will differ slightly depending on the circumstances of your dispute, but it’s usually made up of the same steps:
  
  1. Investigation
  We’ll examine the Will and any related documents (this might be property deeds, trust accounts, previous Wills made by the deceased).
  
  If relevant, we may also gather medical evidence about the deceased, to understand their condition when they made the Will. This would be particularly important in disputes over whether or not someone had mental capacity to make a Will.
  
  We might also get witness statements from those who knew the deceased, to better understand the full circumstances in which the Will was drawn up.
  
  These investigations will help us confirm whether you can make a claim, and what type of claim it will be.
  
  2. Mediation
  Most disputes can be settled by an alternative dispute resolution method, such as mediation. This means that you don’t have to go to court, which can be costly and time-consuming.
  
  Mediation typically takes place on one day, with a professionally trained mediator present as a neutral third party. The mediator’s role is to try to help you reach an agreement with the executor and the other beneficiaries.
  
  3. Court
  Some disputes cannot be resolved by mediation. If this is the case, the matter will have to be settled in court. This is rare, however – and if it does happen, we have the expertise to secure the best outcome for you.
  
  Whatever the circumstances of your dispute, we’ll support you every step of the way – and we’ll give you a clear idea at the start of how long we think it will take, and the outcome we think you can expect.
- How Long Will It Take?
- Most claims take less than a year and don’t have to go to court. However, every case is different and time spans depend on the type of dispute and your individual situation.
  
  Some disputes can be resolved quickly and amicably in a matter of months, but others might take years to conclude and involve going to court several times.
  
  We’ll advise you at the start how long we think it will take. Whatever the situation, we always aim to resolve your dispute as quickly and efficiently as possible. We understand that this is a difficult time, and we’re here to help you through.
- Will I Have To Go To Court?
- Most disputes can be resolved by negotiation and discussion, without having to go to court. However, sometimes this isn’t possible and court is the only way.
  
  We understand that most people would prefer to keep their dispute out of court, and we will always do everything we can to try and reach an agreement by mediation. However, if your dispute does have to go to court, we will support you at every stage. We have the experience to handle court disputes efficiently and effectively, to achieve the best outcome for you.
- Do I Have To Come To The Irwin Mitchell Offices?
- We understand that the death of a loved one can be a distressing and difficult time, and we’ll do everything we can to make sure your claim is as stress-free as possible.
  
  We’re happy to meet with you at one of our offices – or if you prefer, we can deal with everything by phone or email. We can also come and meet you at a place that’s convenient for you.
  
  We have clients across the country and will always strive to make everything as convenient for you as possible.
- Meet The Team
- Our Wills, Trusts and Estate Disputes team is the largest in the UK and we have offices across the country. We are experienced in managing high-net-worth and ultra-high-net-worth claims as well as less complex ones.
  
  We’ve resolved some of the country’s most high profile disputes and are particularly experienced with the unique challenges of multi-jurisdictional wealth management structures, rural property and inheritance tax.
  
  We are recommended by the leading legal guides and pride ourselves on the strong relationship we build with our clients in what is often a very trying time.
  
  Meet the team

My legal team has held my hand throughout, they have been incredibly patient and understanding"

Joy Williams, client

Frequently Asked Questions

What Is The Court Of Protection?

The Court of Protection is a specialist court that helps people who don’t have the mental capacity to manage their own affairs. The court makes decisions for them about their money, property, health and welfare, to ensure their best interests are protected.

The court can also appoint a Deputy to make these decisions on a more day to day basis. The Deputy is usually a close friend or family member, who must act in the person’s best interests and only make decisions that they think the person would have made themselves.

You must apply to the Court of Protection to appoint a Deputy, to make a statutory Will, or to amend an existing one. The court supervises the actions of a deputy and acts as a safeguard to check that the right choices are being made on someone’s behalf.

At Irwin Mitchell we have an expert in-house Court of Protection team, helping hundreds of people manage the affairs of loved ones who have lost mental capacity. In statutory Will disputes we work closely with them, drawing on their experience to provide a seamless service and give you the support you need.

Why Does Someone Need A Statutory Will?

To make a valid Will you must have what is called ‘testamentary capacity’. This means you must have the mental capacity to understand your will-making decisions and their effects.

If a person lacks testamentary capacity, they can no longer make a Will or make changes to an existing one. This could have a damaging effect on the distribution of their estate, for example if:

It’s divided up in a way they wouldn’t have wanted (especially under the rules of intestacy, which set out who inherits when someone dies without a valid Will)
New legislation affects previous tax planning decisions
There have been changes in circumstances – such as the marriage or death of a beneficiary or birth of a potential beneficiary which make the Will out of date.

Making a statutory Will allows loved ones to make a Will that reflects:

What the person would do if they were able to make a Will themselves
The person’s beliefs and personal values
How the person has acted and made decisions for themselves in the past.

If you’re worried a statutory Will does not reflect this, or that a financial deputy is not making the right decisions, we can help. Call today on 0345 604 4895 – or fill out our online contact form and we’ll call you back.

What Does A Deputy Do?

When someone loses the capacity to make their own decisions, the Court of Protection may appoint a Deputy to manage their affairs. This will usually be a family member or close friend who knows the person well and can make decisions in keeping with what they would have wanted.

The decisions might be about the person’s finances, property, or even care arrangements and medical treatment. The Court will set out exactly what kinds of decisions the Deputy is allowed to make, depending on the individual situation.

If you are appointed as a Deputy to look after someone’s affairs, you might have to:

Manage their assets
Sell their house
File tax returns for them
Apply to the Court for a statutory Will.

As a Deputy, you are not allowed to:

Make or amend a Will on their behalf (only the Court can make a statutory Will)
Make large gifts of their money or pay for things for another person for example school fees for a grandchild (the Court can authorise this)
Put their property or money in your own name.

Being a Deputy comes with a lot of responsibility, and each decision must always be made in the person’s best interests.

If you’re concerned that a Deputy is abusing their power or making decisions that they shouldn’t, we can help. Call today on 0345 604 4895 – or fill out our online contact form and we’ll call you back.