Court of Protection Costs Statutory Will Applications

Regular readers of Paul Cruickshanks’ articles may have noticed much of his recent content focussed on the new COP E-bill, given the ongoing pilot that is currently in place. However, by way of a departure, this time he takes a look at a typical Statutory Will application, outlining the process and providing some hints and tips on costs for these types of application.

This article will be of interest to professional Deputies, those assisting the professional Deputy and those who assist in making Statutory Will applications.

 

It’s a good idea to separate the costs for a Statutory Will application, for example by opening a new file. Sounds simple right? However, there are a few issues that need to be resolved before one even knows whether or not a Statutory Will application is required.

Locating and reviewing an existing Will

It is common that once a professional Deputy is appointed, you will look to see if the Protected Party (P) has a Will. Sometimes, a copy of the Will can be easily located, however, on other occasions, significant work is required to locate the Will. We have seen many occasions where numerous local firms are contacted to see if they hold a Will for a particular client, sometimes to no avail.

There are companies out there that can assist with locating a Will. For example, our good friends at The National Will Register hold information in relation over 10 million Wills, with this list growing every day. This is certainly a good place to start and might avoid a lot of costs if the Will you are looking for can be located.

Once the Will has been located, it is necessary to review the same and consider whether it is valid and whether it reflects P’s current wishes and feelings. There can be a number of reasons why a Will might need to change, ranging from issues within the family to beneficiaries passing away.

Of course, P may not have a Will at all, in which case a Statutory Will can be made to reflect P’s wishes in this regard (provided it is shown P lacks capacity to make a Will).

Once it has been established changes to the Will or a new Will are required, it is then necessary to establish whether P has the capacity to make a Will.

 

Testamentary Capacity

Whilst P may not have capacity to look after the entirety of their property and financial affairs, they may have capacity to make a Will. This is known as testamentary capacity. It is necessary for an assessment of P’s testamentary capacity to be undertaken to establish whether P is able to provide instructions in relation to their Will.

It may be that following the assessment, the capacity assessor finds P does have capacity to make a Will. In this scenario, a Statutory Will is not required as P will be able to provide instructions in relation to their Will. It is my view that all the work detailed above, to this point, falls under general management work. Further work in obtaining instructions from P and preparing the Will can also fall under General Management work, where it has been established P has testamentary capacity.

On the other hand, should the capacity assessor find P does not have testamentary capacity and it is established a Statutory Will application is required, it is at this point I would be advising practitioners to open a new file for the progression of this application.

Preparing the application

There is a great deal of work involved in preparing the application and pulling together all the information required to persuade the Court of Protection to make an order authorising the execution of a Will on P’s behalf. I will not go over all the steps here, as they vary greatly from case to case. However, invariably it is necessary to liaise with P and/or those close to P, (e.g., family members) to obtain their views on P’s wishes and historic relationships between P and certain family members/proposed beneficiaries. This can be complex and time consuming, particularly if differing accounts are obtained from different family members.

The court will need to be provided with the aforementioned capacity assessment (usually a COP3), copies of any previous Wills and the formal COP documents (COP1, COP1A, COP24 witness statement) along with a copy of the proposed Will and details of how the estate will be distributed. It will also be necessary to outline any key changes from previous Wills, should one exist.

Once the application has been filed, the Court will likely approach The Official Solicitor to invite them to act on behalf of P as their litigation friend. (This could also be another firm of solicitors asked to act on behalf of The Official Solicitor if they are unable to do so for any reason). The Official Solicitor will need to be satisfied that the application is being made in P’s best interests. The applicant will also be required to serve the application on all interested parties, as per the Court of Protection Rules 2017.

Again, dependent on the case, the number of parties to be served could be numerous. If any party objects, they may wish to seek their own independent legal advice. In many cases, the costs of all parties will be borne out of P’s estate (although the Court of Protection has the jurisdiction to depart from the general rule and order costs, or an element of costs to be paid by a third party if they have behaved unreasonably during the proceedings).

There will then be a period of “negotiations” between the applicant, The Official Solicitor and the parties to seek to reach an agreement on the form and content of the Statutory Will. In many cases, an agreement will be reached, however, in the event no agreement can be reached, a Final Hearing will be required, in which the Court of Protection Judge will make a final determination.

Once the Statutory Will has been agreed, an order will be made authorising the execution of said Will and providing further directions to conclude the matter. In addition, it is likely there will be a clause to state the costs of the parties for making the application are to be assessed by the Court of Protection Section of the Senior Courts Costs Office (SCCO) and that such costs are to be paid from P’s estate (unless the court varies this, as detailed above).

It would be under the terms of this order, as opposed to the Deputyship order, that authority for the assessment of these costs would be provided. It is for this reason that I advised above that a separate file should be opened to detail these costs.

It is highly likely that, once the costs have been assessed, the costs officer will direct the assessed bill be served upon all interested parties. This is another reason to separate the costs, as whilst it is possible, in theory, to incorporate the Statutory Will costs within a General Management bill (as a separate part) it will become onerous when serving the bill on the interested parties, as you will only want to serve the bill detailing the Statutory Will costs. This becomes a further challenge if elements of the application costs are contained within several general management periods.

I do hope the information provided here will be of assistance to practitioners. As with many costs aspects, these issues are not always clear cut. I am always happy to discuss queries that arise from practitioners during the course of your day-to-day work. Should you be unsure as to whether you need to open up a separate file, or when you should do this, please do not hesitate to contact us here at A & M Bacon.

About the author

Paul Cruickshanks joined A&M Bacon in June 2018 and specialises in Court of Protection Costs Recovery.

Paul’ s career in costs started out in October 2002, where he worked as a costs negotiator dealing with personal injury matters. His interest in Court of Protection matters began in 2006 when he worked in-house for two panel deputies. The following years saw Paul building up a case load of over 70 clients nationwide.

Paul continues to enjoy being at the coal face, drafting bills of costs for provisional assessment and ensuring clients are properly remunerated for the work they do in managing the property and financial affairs for those who are unable to do it themselves. Paul is also able to draft letters of appeal for those assessments where it is felt a fair result has not been achieved.

With well over ten years’ experience in this field, Paul enjoys working with clients by providing them with in house training, advice and ongoing guidance and assistance as to how they can adapt their working practices to ensure the best result at assessment is achieved. Whilst Paul strives to maximise his clients’ recovery, he also ensures that the protected party is only liable to pay what is right and proper.

In Paul’s spare time, he is a self-confessed “foodie” who enjoys meals out, walking his dog Eddie and following as much sport as he can!

About A&M Bacon

A&M Bacon have a dedicated team of costs specialists, engaged solely in the preparation of bills of costs for all proceedings undertaken within the Court of Protection.

With many years’ experience in dealing with Court of Protection costs. A&M Bacon work for firms across the nation and it is this experience which enables them to monitor recovery rates, review trends of the costs officers at the SCCO and seek to advise clients on how to maximise their recovery on assessment.