Statutory Will Procedure and Practice Directions within the Court of Protection

For a person who lacks capacity, the making of a Will can only be made if approved by the Court. This is known as a ‘Statutory Will’.

The Courts have full discretion in respect of the costs of the application and no costs can be taken from a person’s estate without an Order from the Court. In general, the Courts apply the rule that the costs of proceedings concerning a person’s property and financial affairs are to be paid from that person’s estate, subject to detailed assessment. Please note that this general rule, should not be taken for granted, as the Court can, considering the conduct of parties, direct one person to pay another party’s costs or even refuse a party costs altogether, if incurred unnecessarily. The Courts also have the power to limit costs if they feel that it would be appropriate to do so.

In accordance with Practice Direction 47, Rule 47.18(3) it states that a Statutory Will Application should be filed at Court with a N258B (Request for Detailed Assessment – Costs payable out of a fund other than the Civil Legal Aid Fund) rather than a N252 (Notice of Assessment of Bill of Costs). Rule 47.18(3) reads as follows:

“The request for a detailed assessment of costs out of the fund should be in Form N258B, be accompanied by the documents set out at paragraph 17.2(1) (a) to (e) and the following—

 (a) a statement signed by the receiving party giving his name, address for service, reference, telephone number,

 (b) a statement of the postal address of any person who has a financial interest in the outcome of the assessment; and

 (c) if a person having a financial interest is a child or protected party, a statement to that effect.”

 The bill of costs will then be assessed by a Costs Officer at the Senior Courts Costs Office.

Further to the above, Practice Direction 47.19 of the CPR in relation to the costs payable out of a fund other than the Community Legal Service fund or by the Lord Chancellor states the following:

“Rule 47.19 enables the court to direct under rule 47.19(3) that the receiving party must serve a copy of the request for assessment and copies of the documents which accompany it, on any person who has a financial interest in the outcome of the assessment…the court will decide, having regard to the amount of the bill, the size of the fund and the number of persons who have a financial interest, which of those persons should be served and may give directions about service and about the hearing. The court may dispense with service on all or some of those persons…Where the court makes an order dispensing with service on all such persons it may proceed at once to make a provisional assessment, or, if it decides that a hearing is necessary, give appropriate directions. Before deciding whether a hearing is necessary, the court may require the receiving party to provide further information relating to the bill.”

As costs will be settled from the Protected Party’s estate, the above Practice Directions will apply. The bill of costs should be filed for assessment to enable the Costs Officer to consider the costs claimed and then direct if the bill should be served on the interested parties. It is then for the Conducting Fee Earner to decide who the assessment should be served upon.

If you have any questions please do not hesitate to contact myself, or a member of the COP Costs Team at Clarion at COPCosts@clarionsolicitors.com

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