What happens after a statutory will application is submitted?

So you have submitted an application for a statutory will. What’s next? This blog explains the stages that follow submission, how the Court gathers views from those involved and how costs are managed. 

In this part of the ‘Statutory wills and recent updates‘ series, Holly Miéville-Hawkins, Partner in the Court of Protection team at Anthony Gold, looks at what happens once a statutory will application has been sent to the Court of Protection with key insight from Kathleen Bennet, solicitor in the firm’s London Court of Protection team.

Gathering views from respondents 

Once the application has been filed, the Court of Protection checks that all appropriate respondents have been identified. If the Court is satisfied that everyone who should be notified has been included, it will then ask each respondent to provide a witness statement. This statement sets out their views on the application and on the proposed terms of the statutory will or codicil. 

The Court will then seek the views of the Official Solicitor, who acts as litigation friend for the individual at the centre of the application. Before giving their view, the Official Solicitor will review the full application, read all witness statements and, in most cases, visit the individual concerned. This helps the Official Solicitor understand the person’s circumstances, relationships and best interests before providing the Court with their views.  

Attempts to reach agreement 

The Official Solicitor will often encourage the parties to reach an agreement without the Court’s involvement if possible. Reaching consensus early can reduce costs, avoid unnecessary delay and help ensure a smoother process. Where disagreements remain, the Court may direct the parties to take part in mediation as a further attempt to resolve the issues. 

However, if agreement is not achievable, the application can proceed to a court hearing. At this stage, the Court of Protection will weigh all the evidence, including the parties’ views and the Official Solicitor’s views, before deciding whether the proposed statutory will is in the individual’s best interests. 

Who pays for the application 

The starting point is that the costs of a statutory will application are borne by the individual whose will is being considered. This reflects the fact that the proceedings are brought to determine their best interests and not for the benefit of others. 

To ensure fairness, legal costs can be submitted to the Senior Courts Costs Office for assessment. The Costs Office reviews the bills and determines whether the costs claimed are reasonable. 

When the Court may depart from the usual costs rule 

Although the default position is that the protected party meets the cost of the application, the Court of Protection retains discretion to make a different costs order. Where a party has acted unreasonably, caused unnecessary delay or failed to act in the protected person’s best interests, the Court may require that individual to bear their own costs or contribute to wider costs in the case. 

This flexibility allows the Court to ensure that the protected person’s estate is not unfairly depleted because of the conduct of others. 

Register to watch the full interview 

Do not miss the full expert discussion. Register for free to watch Holly Miéville-Hawkins and Kathleen Bennet explain the essential principles of statutory will and recent updates.