A statutory will allows the Court of Protection to approve a will for someone who no longer has the mental capacity to make or change one themselves. At Imperial Law, we understand that families considering this option are often dealing with dementia, serious illness or a life-changing injury at the same time. Knowing what a statutory will can achieve, and where its limits lie, can make a difficult situation easier to approach.
The process is very different from ordinary will writing. A relative, attorney or deputy cannot simply decide what the new will should say and sign it on the person’s behalf. The Court of Protection must be satisfied that the person lacks the relevant capacity and that the proposed arrangements are in their best interests.
This guide explains when a statutory will may be required in England and Wales, how the application works, what evidence the court considers and why early legal advice can be valuable.
What Is a Statutory Will?
A statutory will is a will authorised by the Court of Protection for an adult who lacks testamentary capacity. Testamentary capacity means the ability to understand the nature and effect of making a will, the general extent of one’s estate and the people who might reasonably expect to benefit.
The court’s power to authorise a statutory will comes from the Mental Capacity Act 2005. Once the court has approved the terms, the document must be signed in the manner directed by the court, witnessed and returned to the Court of Protection to be sealed. It can then operate as the person’s will.
This is not the same as helping someone physically sign an ordinary will. A person may understand and approve their will but be unable to hold a pen because of illness or disability. Different signing arrangements may be possible in that situation. A statutory will becomes relevant only when the person cannot make or change the will themselves because they lack the necessary decision-making capacity.
For a wider explanation of the language surrounding capacity, read our guide to what “sound of mind” means.
When Might a Statutory Will Be Needed?
Every case depends on its own facts. Losing capacity does not automatically mean that a new will should be created. If the person already has an appropriate valid will and their circumstances have not materially changed, an application may offer little practical benefit.
However, a statutory will may be considered where:
- The person has never made a will and can no longer do so.
- An existing will is seriously out of date.
- The person’s assets or family circumstances have changed substantially.
- Their estate has increased after compensation, an inheritance or the sale of a business.
- Property referred to in an existing will has been sold to fund care.
- A beneficiary named in the existing will has died.
- Tax planning or the preservation of assets for dependants needs to be considered.
- The current arrangements may cause avoidable unfairness, uncertainty or dispute.
For example, someone might have made a will many years before developing dementia. Since then, they may have divorced, formed a new long-term relationship, acquired a valuable property or become responsible for a dependent relative. If they now lack testamentary capacity, they cannot personally update that will. A statutory will application may allow the Court of Protection to consider whether new arrangements would be in their best interests.
Families sometimes assume that a diagnosis of dementia immediately prevents someone from making a valid will. That is not necessarily correct. Our article asking can someone with dementia make a will? explains why the diagnosis and the legal question of capacity are not the same thing.
Mental Capacity Is Specific to the Decision
Capacity is both decision-specific and time-specific. A person may be unable to manage investments, pay bills or complete a property transaction while still retaining enough understanding to make a comparatively straightforward will. Equally, someone may communicate clearly about everyday matters but be unable to understand the assets, relationships and consequences involved in their proposed will.
Capacity can also fluctuate. Some illnesses, medications and health conditions can produce periods of greater or lesser clarity. It is therefore important not to treat age, appearance, diagnosis or residence in a care home as proof that somebody cannot make a will.
Before pursuing a statutory will, the evidence should address the person’s capacity to make this particular decision. A medical assessment will usually be required, but the legal assessment is not reduced to a single medical label. The surrounding evidence, the complexity of the estate and the terms being proposed can all matter.
Where the person may still have testamentary capacity, an ordinary professionally prepared will could be more suitable. Our will writing service in Wolverhampton explains how legal support can help people record their wishes clearly and reduce uncertainty for those they leave behind.
Who Can Apply for a Statutory Will?
Applications are commonly made by somebody already involved in managing the person’s affairs, such as a property and financial affairs attorney or a Court of Protection deputy. A family member or another interested person may also seek to apply, although permission from the court may be required depending on the applicant’s legal role and the circumstances.
Being closely related to the person does not create an automatic right to rewrite their will. Likewise, holding a lasting power of attorney does not allow an attorney to make a will independently for the donor. Only the Court of Protection can authorise a statutory will.
That distinction is important. An attorney or deputy may have broad authority over bank accounts, investments and property, yet testamentary decisions receive separate protection. Anyone uncertain about the difference between these planning documents may find our comparison of powers of attorney and statements of wishes useful.
What Does “Best Interests” Mean?
The Court of Protection does not merely ask what the applicant, the wider family or the future beneficiaries would prefer. Its central task is to decide what is in the best interests of the person who lacks capacity.
In doing so, the court may consider:
- The person’s past and present wishes and feelings, including anything recorded in writing.
- The beliefs and values that would be likely to influence their decision.
- The way they arranged their affairs while they still had capacity.
- Their relationships with family members, friends, carers and other important people.
- The terms of any existing will or codicil.
- The likely beneficiaries if they died without a valid will.
- The size and nature of their estate.
- Their current and anticipated financial needs.
- Relevant tax consequences.
- Whether the proposal could encourage or reduce future disputes.
Best interests do not always mean attempting to reconstruct the exact will the person would have made. The court considers the person’s position as a whole, including their autonomy, their relationships and the importance of being remembered as someone who dealt fairly with others.
The applicant should therefore expect the proposed statutory will to be examined carefully. A plan designed mainly to benefit the applicant, or to exclude somebody without adequate explanation, is likely to attract particular scrutiny.
What Information Does the Court Need?
A statutory will application needs considerably more than a draft document. The Court of Protection requires enough information to understand the person, their finances, their family and the practical effect of the proposed terms.
The application will normally include:
- The relevant Court of Protection application and supporting information forms.
- Evidence assessing the person’s capacity to make a will.
- A witness statement explaining the background and the orders requested.
- A copy of the current will and any codicils, if they exist.
- A draft of the proposed statutory will or codicil.
- Details of any registered lasting or enduring power of attorney.
- A copy of any deputyship order.
- A family tree.
- Details of the person’s home, care arrangements and personal circumstances.
- A schedule of assets, liabilities, income and expenditure.
- Information about possible Inheritance Tax consequences.
- Details of proposed executors and beneficiaries.
- An explanation of why particular people should be included or excluded.
The capacity evidence must relate to the decision to make or change a will. An older report produced for a different purpose, such as managing bank accounts or deciding where the person should live, may not answer the question before the court.
Gathering complete and consistent evidence at the beginning can help prevent avoidable questions and delay. Incomplete financial information, an unexplained departure from an existing will or failure to identify affected relatives can make the process more difficult.
How Does the Statutory Will Application Work?
Although the precise procedure can vary, a typical application involves the following stages.
1. Establishing the Need for an Application
The first step is to examine the person’s capacity, current will, family circumstances and estate. This helps determine whether a statutory will is genuinely needed and what the proposed terms might seek to accomplish.
If no valid will exists, it is also important to understand who would inherit under the rules of intestacy. The proposed will will often be compared with that legal starting point.
2. Preparing the Evidence and Draft Will
The applicant must prepare the relevant forms, capacity evidence, witness evidence, financial information and proposed wording. The reasons for each material provision should be clear. This stage may require information from relatives, attorneys, deputies, accountants, medical professionals and other advisers.
3. Issuing the Application
The application is submitted to the Court of Protection with the applicable court fee. Court fees and procedures can change, so current requirements should always be checked when the application is prepared. Further costs may arise from legal representation, medical evidence, a hearing and the involvement of the Official Solicitor.
Property and affairs costs are often paid from the estate of the person who lacks capacity, although the court retains discretion and may make a different costs order. Applicants should not assume that every cost will automatically be reimbursed.
4. Notifying Interested People
People whose interests may be affected will usually need to know about the application. They may include beneficiaries under an existing will, relatives who would inherit under intestacy and anyone else identified by the court.
Notification gives interested people an opportunity to support the proposal, ask questions or object. The person who lacks capacity may also be made a party to the proceedings and represented by the Official Solicitor or another litigation friend.
5. Resolving Questions or Objections
Some applications can be decided without a contested hearing. Others involve disagreement over capacity, the person’s wishes, the value of their estate or who should benefit. The court can request further evidence, direct negotiations or hold a hearing before reaching its decision.
If conflict already exists, early advice is particularly important. A later dispute over an ordinary or statutory will can become emotionally and financially demanding. Our guide to contesting a will in the UK discusses the broader grounds, steps and time limits that can arise after a death.
6. Approval, Signing and Sealing
If the court approves the statutory will, it will direct how the document must be executed. The will is signed on behalf of the person, witnessed and sent to the Court of Protection to be sealed. The approved wording should not be altered informally.
The completed document should then be stored securely. Relevant attorneys, deputies or trusted family members should know that a valid will exists and where it can be found, without compromising the person’s privacy.
How Long Does a Statutory Will Take?
There is no single reliable timescale. A straightforward, well-supported and uncontested statutory will application may progress more quickly than one involving disputed capacity, complicated assets, missing records or serious disagreement between relatives.
Possible causes of delay include:
- Obtaining a suitable capacity assessment.
- Valuing property, investments or business interests.
- Tracing relatives and preparing an accurate family tree.
- Identifying and notifying everyone affected.
- Revising a proposal that does not adequately reflect the evidence.
- Waiting for responses from interested parties.
- The appointment and involvement of the Official Solicitor.
- The need for additional evidence or a court hearing.
An urgent application may be possible where the person has a short life expectancy. Urgency should be raised immediately and supported by appropriate medical evidence. Families should not wait until the final stages of a serious illness if concerns about an outdated or missing will have already become apparent.
What Happens If There Is No Statutory Will?
If the person dies with a valid existing will, that document will ordinarily determine how their estate is distributed. If they die without a valid will, the intestacy rules will apply.
Those outcomes may be perfectly appropriate. A statutory will is not compulsory simply because someone lacks capacity. However, relying on an old will or intestacy without reviewing the consequences can produce results the person would never have anticipated.
Unmarried partners, stepchildren, friends and carers do not automatically inherit under the intestacy rules merely because they had a close relationship with the deceased. Our article on what happens if you die without a will explains the potential consequences in more detail.
After death, beneficiaries may sometimes agree to redirect an inheritance. This is a separate process and is not a substitute for a statutory will during the person’s lifetime. Read our guide explaining whether you can change a will after death for more information.
Can a Statutory Will Deal With Property?
Yes. Property is often one of the most significant assets considered in a statutory will application. The proposal might need to address a home, a jointly owned property, a rental investment or the proceeds of a property that has already been sold to fund care.
Care is needed where an existing will leaves a particular property to a named beneficiary but that property may need to be sold during the person’s lifetime. The sale could mean that the intended gift no longer exists at death. Depending on the wider circumstances, a statutory will might be considered to reflect the person’s previous intentions more fairly.
The will itself does not authorise a lifetime sale or transfer. Attorneys and deputies must act within their own authority, and additional Court of Protection involvement may sometimes be required. Where a property transaction is contemplated, our Wolverhampton conveyancing team can advise on the conveyancing aspects of the transaction.
Can Family Disagreement Prevent an Application?
Disagreement does not automatically prevent the Court of Protection from approving a statutory will, but it can make the application longer, more complex and more expensive. The court, rather than the family, makes the final decision.
Common points of conflict include:
- Whether the person truly lacks testamentary capacity.
- Claims about promises made before capacity was lost.
- The treatment of children from different relationships.
- The position of an unmarried partner or estranged relative.
- Large gifts to one family member or carer.
- The exclusion of somebody who expected to inherit.
- Concerns about pressure, financial abuse or conflicts of interest.
The evidence should remain focused on the person who lacks capacity and their best interests. Existing tensions must be disclosed rather than hidden. Where separation, children or other relationship issues also require advice, Imperial Law provides information about its broader family law services in Wolverhampton.
Frequently Asked Questions About Statutory Wills
Can an attorney make a will for someone?
No. An attorney cannot independently make or alter the donor’s will. If the donor lacks testamentary capacity, the Court of Protection must authorise any statutory will.
Is a statutory will only for someone with dementia?
No. A person might lack the required capacity because of an acquired brain injury, learning disability, neurological condition, mental illness or another serious illness. The legal question concerns their ability to make the particular decision, not the name of the diagnosis.
Can the Court of Protection change an existing will?
Yes. The court can authorise a new statutory will or a codicil changing an existing will if the person lacks capacity and the change is in their best interests.
Does losing financial capacity mean someone cannot make a will?
Not necessarily. A person who cannot manage complex finances may still understand the information needed to make a valid will. Testamentary capacity should be assessed separately.
Will the person’s nearest relative decide who inherits?
No. Relatives can provide information and make representations, but the court decides whether the proposed terms are in the person’s best interests.
Is a medical report enough on its own?
Medical evidence is a central part of the application, but the court also needs legal, financial and factual evidence. It must understand the estate, the person’s relationships, their known wishes and the effect of the proposed statutory will.
Can an application be made urgently?
Potentially, yes. An emergency application may be appropriate if the person has a short time to live. The reason for urgency and the supporting evidence should be made clear to the court as soon as possible.
Can a statutory will be challenged?
Interested people can raise concerns during the Court of Protection proceedings. Disputes may also arise after death, although a court-approved process and a strong body of contemporaneous evidence can clarify how and why the will was made.
Why Legal Advice Matters
A statutory will application sits at the intersection of mental capacity, estate planning, family relationships, tax and sometimes property law. Small omissions can have serious consequences. A missing relative, an inaccurate asset schedule or poorly explained proposal may delay the case or undermine the application.
Legal advice can help to:
- Determine whether a statutory will is necessary.
- Distinguish testamentary capacity from other forms of capacity.
- Identify conflicts of interest at an early stage.
- Gather the evidence and financial information the court needs.
- Prepare terms that properly reflect the person’s best interests.
- Notify the correct people and respond to objections.
- Coordinate related property, family or estate-planning work.
Most importantly, careful advice keeps the focus on the individual whose will is being considered. The process should protect their rights, dignity, relationships and estate, rather than becoming a contest between prospective beneficiaries.
Speak to Imperial Law About Your Circumstances
No two statutory will applications are identical. The right approach depends on the person’s capacity, their existing arrangements, the value and nature of their estate, their family relationships and the urgency of the situation.
If you believe that a relative’s will is missing, outdated or unsuitable but they can no longer change it themselves, seek advice before taking action. Contact Imperial Law to discuss the circumstances and the legal support that may be appropriate.
