A race against time?

• With the resourcing issues currently faced by the court, any application for a statutory is now likely to take months.
• Measures such as holding wills could be introduced to overcome the potential consequences to those lacking mental capacity and the distribution of their estate.

Court of Protection, wealth protection, trusts and estates practitioners will all share the same primary concern when submitting an application for a statutory will; namely, that the person whose mental capacity is in question (P) doesn’t live long enough for them to get to the end of the process and successfully achieve the desired outcome.

With the resourcing issues currently faced by the court, the same for the Official Solicitor and often a number of other represented parties, there is an uncomfortable expectancy now that any application will be resolved in months, rather than weeks; all while P’s circumstances remain unpredictable.

Much legal toing and froing and the associated costs can be in vain if P dies before the court finally approves the final draft for execution. It begs the question of whether the acceptance of this potential jeopardy is really in P’s best interests at all. Should we, as advisers, be placed in the position where we ought to tell enquirers that it is likely to be a waste of time and money to make an application for a statutory will because their family member is too unwell? Is this not the time when most people consider the appropriateness of their will arrangements?

I would never undermine the importance of due process, and it is clear that this is an area where all parties should value a considered and thorough assessment of best interests prior to making a decision which is likely to affect many, both financially and emotionally. However, if there is a significant risk that you don’t end up with a valid will at the end of the process, something has to change.

The reality of the situation

I was recently contacted by a solicitor of another firm to ask whether I would be happy to be appointed as an independent executor; a ‘last-minute’ request by the Official Solicitor, who had concerns over a possible conflict of interest if P’s professional deputy was to become the executor. It was described as last-minute because sadly, P’s health had taken an unexpected turn for the worse. He was to die less than an hour after I was contacted. Of course, this could always happen—we do not have a clock that tells us how long our clients are going to live and, not every unfinalised application can be put down to bottlenecks and backlogs. However, in this case, I was informed that the application had been issued for well over 12 months and that the identity of the executor was the only point outstanding on an otherwise agreed draft will.

If someone with testamentary capacity can have a will prepared for them in a matter of days, it does not sit well that someone who lacks capacity must wait over 12 months. In cases where there is a lack of mental capacity, there are often other life-limiting factors to consider. In my opinion, this is not serving our most vulnerable clients well enough. Of course, there are potential avenues for expediting cases in emergencies, but life (and death) is unpredictable and, as in the case above, sometimes even an expedited matter cannot be processed quickly enough.

In the absence of a successful application, P’s estate will pass into intestacy or, if they had previously executed a will, then by that. This is likely to produce a result which differs from what P would have wanted (on the assumption that the majority of statutory will applications that go all the way are successful in that they result in a new approved will). It could lead to Inheritance (Provision for Family and Dependants) Act 1975 (I(PFD)A 1975) proceedings and the legal fees associated with that. It may also see legitimate would-be beneficiaries miss out completely without any recourse, all because of the length of time the process has taken.

Potential impact of a ‘holding will’

This recent experience made me question whether there was a simple solution. It occurs to me that all parties involved in the application could easily be defined by name or by class at the outset—after all, identifying and notifying these individuals is part of the initial application process. It also strikes me that having the potential for everyone to benefit and allowing a ‘deal’ to be done if the application does not reach its proper conclusion is a better result than potential legitimate beneficiaries being excluded without any recourse, and/or it causing long, drawn-out contested probates. This could be achieved through a holding will, whereby the entirety of P’s residuary estate is placed into a discretionary trust and held by independent professional trustees.

It follows, then, that if there was an option for such a holding will to be automatically approved after issue, subject to a reasonable notice period and opportunity for objection (though at a high threshold), it would take some of the jeopardy away from the process.

This proposal would possibly rely on an obligation on the independent trustees to apply to court under CPR 8 for directions in cases where agreement between the relevant parties could not be found (or where there are minor beneficiaries), but where agreement by the parties is possible. This is more likely the deeper into the statutory will process the application reaches (as points of contention are typically resolved in stages during the process). Then the independent trustees could simply prepare a deed of appointment to give effect to the agreement. If made within two years of P’s death, the arrangement could be read back for capital taxation purposes, as if they were contained in P’s will all along. Tweaks to the relevant legislation may be needed to provide for a moratorium on the two-year deadline for matters which still need to receive judicial attention, but I do not see this as particularly controversial as changes to tax legislation go.

There is, of course, the chance that by taking the jeopardy out of the process, you will also take away some of the urgency, and this could make matters take even longer. One would hope with professionalism and the overriding duty to act in the best interests of P, this would not occur, and the application would continue to progress to attaining the final will (which would automatically revoke and replace the earlier holding will) as swiftly as resources allow.

I do not believe we should happily continue with a scenario where our most vulnerable are prevented from having what they need (and would otherwise be able to get freely but for their disability), due to the resource challenges and subsequent delays arising from the court and the Official Solicitor or, dare I say it, the tactical delays of an interested party. If this is not the solution, one must be found.

This article was first published on the New Law Journal.