If a person lacks the capacity to make a will for themselves, it is possible to make a statutory will for them by applying to the Court of Protection. When seeking to vary such a will, however, the Court of Protection Rules 2017 require that beneficiaries under the existing will must normally be served with the application if they will be 'materially or adversely' affected by the changes. After an application was made to vary the statutory will of a 71-year-old man with a lifelong learning disability, the Court considered whether this step was necessary.
The man's estate, including his home, was worth about £12 million. However, his living and care costs had come to exceed his investment income by about £250,000 per year and this shortfall was expected to increase, resulting in his liquid assets being exhausted by the time he is 84. His current will left £1.6 million to his carers by means of a discretionary trust, with the residue of his estate going to unspecified charities. His brother, who was also his deputy, applied to vary the will to take account of his changed circumstances. The most notable change was an increase in the legacy to the carers to £2 million.
While there was no dispute about the terms of the new will, the brother argued that serving the current beneficiaries with the application was unnecessary. The carers stood to benefit from the change and so were not 'materially or adversely' affected by it, and there were no identified charities that could lose out by the reduction in the residuary estate. Where there are bequests to unidentified charities, the Attorney General is normally served with the application, but the brother argued that the estate should not have to bear the costs of representation by the Attorney General. The Official Solicitor challenged these arguments.
The Court concluded that the carers were likely to be materially affected: a material change did not have to be a negative one. However, both the Official Solicitor and the Court agreed with the brother's contention that notifying the carers created a risk of conflict between them that could impact on the man's care. As such, there were compelling reasons to dispense with service to them.
With regard to the charitable bequest, however, the Court concluded that the Attorney General should be given the opportunity to make representations. Given the current size of the estate, notification to the Attorney General was not disproportionate.