What is a statutory will?

A statutory will is a way of making a will for somebody if they lack the mental capacity to make their own will. An application for a statutory will would need to be approved by the Court of Protection but once approved it has the same effect as if that person had capacity and had made their own will.

When is a statutory will needed?

A statutory will may be needed where a person has lost the mental capacity to make a will and either they do not already have a will in place or there has been a significant change in their circumstances that would make a will useful. For example, a statutory will may be necessary where a beneficiary in an existing will has passed away or where a person’s estate has increased in value and there is a need to adjust or make a will to allow for inheritance tax planning.

How is a statutory will made?

An application would need to be made to the Court of Protection. The Court of Protection has responsibility for making decisions on behalf of adults who lack mental capacity in relation to their finances and/or welfare. Mental capacity is issue specific so any application would need to prove that the person lacks mental capacity to be able to make a will themselves.

The Court would make a decision in the person’s best interests and would consider:

  • that person’s past and present wishes and feelings;
  • any beliefs that that person held which may have influenced their decision if they had been able to make the decision themselves;
  • details of their family and relationships;
  • their assets, income and outgoings; and
  • any other relevant factors that that person would have considered if making a will themselves.

The Court of Protection will always try to involve the person as much as possible when making a decision.

Who can apply for a statutory will?

The following people can apply for a statutory will without needing the Court’s permission:

  • a deputy on behalf of the relevant person (or somebody who is in the process of applying to be the deputy);
  • the appointed attorney under a Lasting or Enduring Power of Attorney;
  • any person who is a potential beneficiary of the person’s existing will or under the intestacy rules if there is no will;
  • any person for whom that person might be expected to provide if they had capacity to do so.

Statutory wills can be very important in terms of protecting a person’s assets and ensuring that these do not pass under the intestacy rules or under provisions of a will that are no longer relevant or that do not reflect that person’s current circumstances.