What is a Statutory Will and Why is It Important?

If you want to make or change a will for someone who lacks mental capacity, you’ll need to apply for a statutory will. Find out what it is, who can send off for it, and how to get one.

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What is a statutory will?

Making a new will or changing one on someone else’s behalf is a very serious step.

If they lack testamentary capacity to do it themselves, you’ll need to apply for a statutory will drafted and approved by the Court of Protection.

There’s no guarantee your request will be approved. You may find it helpful to speak to a legal professional to make sure it’s the right choice for you, as you’ll need to pay an initial application fee of £365.

This does not include costs for solicitors, court hearings, and Counsel’s fees.

Who can apply for a statutory will?

Attorneys

If the person who has lost mental capacity made a Lasting Power of Attorney, the attorney acting on their behalf can apply directly to the Court of Protection for a statutory will.

You might also find this helpful: Your complete guide to Power of Attorney.

Deputies

Deputies are appointed by the Court of Protection to represent someone who can no longer make decisions for themselves. This means they can apply to the court for a statutory will.

Find out more in What is Court of Protection deputyship?.

If you’re not an attorney or deputy

The Court of Protection prefers to approve a statutory will for someone already acting in another person’s best interests. If you’re not already an attorney or deputy, you will need to apply to the court for permission to apply for a statutory will.

You will not need to apply for permission if you are:

A Public Guardian
A beneficiary in a previous will
A beneficiary under intestacy laws

Read: What’s the difference between Power of Attorney and Court of Protection Deputyship?

What is the process for getting a statutory will?

After submission, the Court will review your application along with any supporting evidence, such as medical documents, witness statements, and previous wills if any exist.

You’ll also need to tell, or ‘serve’, the people named in your application:

The person receiving a statutory will
Any beneficiary under an existing will who may be financially affected by the new will
Any person who would inherit under intestacy laws if there were no will
Anyone else named in your application

The Court may also ask you to notify the Official Solicitor. This is someone who represents people in court when they can no longer make decisions for themselves.

You may notify named people by post, fax, email, or in person. They have 14 days to object to your application. If you’re unable to reach an agreement with those you’ve served, the Court may decide to hold hearings so it can make a judgment.

Court hearings cost an additional £485.

When are statutory wills allowed?

Reasons for approving a statutory will include:

Significant increase or decrease in the value of the estate
Planning for inheritance tax
Beneficiaries have passed away or declined an inheritance
Adjusting a will if beneficiaries have already received gifts or inheritance
Marriages, separations, or births change the order of inheritance
Provisions have not been made for certain people
An existing will may not be valid

When making a decision, the Court takes into account the person’s past wishes, feelings, values, and beliefs. This may include written documents that offer insight into what the person would want.

The Court will ask: what would this person do if they could make decisions for themselves?

However, the final judgment is guided by what is in the person’s best interests.

What if a statutory will application is declined?

If you did not have to attend a hearing, you can lodge an appeal if you disagree with a Court of Protection decision.

You have 21 days from the date the decision was made. You’ll need to send a COP35 form to begin an appeal.

The cost of an appeal is £320.

What happens when an application is approved?

Upon approval, you’ll receive a court order confirming the outcome and explaining what to do next.

You must sign two copies of the will in the presence of two witnesses
Two independent witnesses must sign in your presence

Both signed copies must be sent to the Court of Protection. They will be stamped with the Court’s official seal, making them fully legal and valid, and will then be returned to you.

How is a statutory will different to a normal will?

Once valid, a statutory will is identical to a standard will.

The only difference is that a statutory will has been drafted and approved by the Court of Protection and signed by an attorney or deputy.

Should I get legal advice?

Applying for a statutory will can cost thousands of pounds, and it is a long and complicated process. Because of this, it is wise to speak to a legal professional first. They can support your application and guide you through the process.

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What is a Statutory Will and Why is It Important?