The Mental Capacity Act 2005 sets out clearly the power to make the will and guides deputies to consider making one. The decision must reflect the best interests of the person and must also considering their past and present wishes and beliefs. Deputies should also take into account the person’s values and relationships and the Court will often look at any written expressions of wishes or patterns of lifetime gifting to understand what the person would have wanted if they had the capacity to make the will themselves.    

However, when statutory will applications become contentious there is an additional level of complexity as you attempt to navigate the disagreements. Where family members, caregivers or friends feel the proposed will is unfair or does not accurately represent the person’s wishes what should and what shouldn’t you do? 

Firstly, as stated above, the statute relating to statutory wills is clear and it is imperative that you consider that statute carefully, to remind yourself of the basic rules. Additionally, review the case law in the area for helpful guidance on what the Courts have held is and isn’t reasonable.   

The next critical step is to consider what evidence you, or your client have to support your legal position. Litigation always involves the examination of evidence so it is critical to try and locate any previous wills, letters of wishes and statements from family and friends to try and piece together what the person would want if they had capacity and could make a will themselves. Where appropriate obtain medical records and speak to social workers and other professional to gain their insights. A detailed understanding of the person’s asset position and finances is also important and crucially, look carefully for any gaps, missing information and unexplained transactions to gain the fullest picture possible or uncover questionable behaviours. Once you have gathered all the available documentation together take some time to consider it properly to really build up your view. Does it help, does it hinder? At that point you may also wish to consider involving specialist litigators to assist, whether solicitors or counsel and together you can decide whether you have sufficient evidence to make your application, lodge your objection or just how you intend to deal with any objection that has already been made by one of the parties. If proceedings have already been commenced and witness evidence is already before the Court, speak to the Official Solicitor and see if you can obtain copies. They will have most likely carried out a similar exercise and may already have a view, listen to it carefully as their opinion will often influence the other parties and the Court.  

It is also really important to engage with the parties as soon as possible and always try and keep the tone of your correspondence as neutral as possible. Even where you think that another party has behaved badly, allow the evidence to do the talking and don’t engage in nasty or emotive correspondence. It is always a good rule to imagine a Judge is reading your letter. What would they think of your tone? Ideally it should be calm and considered and merely state the facts. This is especially important if the other parties are putting forward an unnecessary personal or aggressive position.  It is tempting to mirror this conduct, but the best advice, in our experience, is to rise above it and keep the tone professional and factual. 

Think about resolution as soon as possible. Is it possible? What format should the discussions take? Mediation is increasingly encouraged by the Courts and parties to litigation should always keep it front of mind during the litigation; in fact, they have a duty to do so. In statutory will proceedings mediation can help the parties agree on the terms of the will that are in the person’s best interests but that prevent the costs of a full contested hearing – which can be significant!  It is often easily forgotten that the usual costs rule in this type of court proceedings, is that the person who lacks capacity will likely have to pay the associated legal costs of the application and any objections.  The court will only usually depart from this rule, if it is found that a party has acted unreasonably or behaved particularly badly.  The threshold for this test is high; so simply raising an objection (however unreasonable one party may deem it to be), will not usually mean a departure from this rule. Mediation can also help the parties to deal with and try and resolve the deep emotional tensions that commonly arise in these types of claims. Long held sibling rivalries and financial arguments between the parties can often build over the course of litigation, which can sometimes take years. Additionally, where the person is older there is often the risk of them unfortunately dying before the conclusion of the proceedings so make sure all applications and correspondence are dealt with as efficiently as possible.      

Finally, take specialist advice at the earliest opportunity.  Parties can sometimes incorrectly believe that instructing solicitors may escalate matters and legal costs, but in our experience, the opposite can be true.  A specialist solicitor can advise the parties on the legal position, as they are removed from the emotions of the matter.  It is easier for a specialist legal advisor to focus everyone’s minds on the core issue in these types of matters (and one that is often forgotten); what is in the best interests of the person who lacks the capacity to make their own testamentary decision, and what would they wish to happen to their estate.  After all, this is what a statutory will is ultimately designed to do.