Understanding Statutory Wills & Protecting Vulnerable Loved-Ones Image

Author: Daniel Benyunes

When it comes to ensuring the welfare of our loved ones, planning for the future is crucial. However, for individuals who are incapacitated and unable to make decisions on their own due to dementia or brain injury, the creation of a Statutory Will becomes essential.


This specialised legal instrument provides a safety net, ensuring that the wishes and best interests of those who cannot advocate for themselves are respected and upheld.


What is a Statutory Will?


A Statutory Will is a Will made by the Court on behalf of a person who lacks the mental capacity to make or change their own Will. This might include individuals suffering from conditions such as dementia, severe mental illness, or brain injuries. Unlike ordinary Wills, Statutory Wills are not created by the person whose estate is being managed but are instead drafted and sanctioned by the Court.


The Benefits of Statutory Wills:

 

  • Protecting Vulnerable Individuals: A Statutory Will ensures that the wishes and best interests of those who cannot make decisions for themselves are respected and safeguarded.

  • Preventing Disputes: Without a valid Will, the law decides how an estate is divided, which can lead to disagreements among family members. A Statutory Will can provide clear instructions and help avoid conflicts.

  • Tailored Solutions: Each Statutory Will is tailored to fit the unique needs and circumstances of the person, ensuring their assets are distributed in a way that aligns with their values and supports their dependents.

Problems Solved by Statutory Wills

 

  • Intestacy Issues: If someone dies without a Will, the law decides how their estate is divided under the Law of Intestacy, which might not reflect their true wishes or consider the needs of all dependents.

  • Family Disputes: Clear instructions in a Statutory Will can help prevent arguments among family members about inheritance.

  • Care Costs: Proper planning can make sure that there are enough funds allocated for the ongoing care needs of the incapacitated person


Applying for a Statutory Will involves several steps:

 

  • Capacity Assessment: A medical professional must assess the individual’s capacity and confirm their inability to make a Will.

  • Application to the Court: A detailed application is made to the Court of Protection, including the proposed Will and reasons for its necessity.

  • Consideration by the Court: The Court will review the application, often involving a hearing, to ensure the proposed Will serves the best interests of the incapacitated person.


The Procedure in Gibraltar


In Gibraltar, the procedure for a Statutory Will follows similar principles to those in England and Wales, given our shared legal heritage. An application must be made to the Supreme Court of Gibraltar, which then examines the merits of the proposed Will. At Charles Gomez & Company, we have extensive experience in navigating this process, ensuring that all legal requirements are meticulously met.


Real-World Case Study: The Late Mrs. Justice Russell DBE


A notable real-world case highlighting the importance of Statutory Wills involved the late Mrs. Justice Russell DBE. In this case, Mrs. Russell, who suffered from advanced dementia, had not updated her Will in many years. Her circumstances had changed significantly, and her family was concerned about the fair distribution of her estate. The Court of Protection stepped in to create a Statutory Will that reflected her current situation and likely wishes, providing peace of mind to her family and ensuring her assets were distributed equitably.


Since 1988, Charles Gomez & Company has successfully drafted and executed thousands of Wills for Gibraltarians. We understand the importance of protecting your loved ones through careful planning. For expert advice and help in creating a Statutory Will, contact me at daniel@gomezco.gi or call 200 74998. Our Chambers are located at 5 Secretary's Lane, Gibraltar.


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