Most people understand that nobody else can simply rewrite their Will for them. But what happens when a person needs a Will—or their existing Will no longer reflects their circumstances—and they no longer have the mental capacity to make those decisions?
In England and Wales, an application can be made to the Court of Protection for a statutory Will. This is a Will made or changed on behalf of someone who cannot make one for themselves.
It is not a shortcut for relatives who disagree with an existing Will, nor does an attorney or deputy have the authority to create one independently. The court must be satisfied that the person lacks the relevant capacity and that the proposed arrangements are in their best interests.
What exactly is a statutory Will?
A statutory Will is a Will authorised by the Court of Protection under the Mental Capacity Act 2005. It may create a Will where none exists or replace or amend an existing Will for a person who lacks testamentary capacity.
The person concerned is often referred to as “P” during Court of Protection proceedings.
If the application is approved, the Will must be signed and witnessed in the way directed by the court. It is then sent to the Court of Protection to receive its official seal. Once completed correctly, it has the same effect after P’s death as a Will they had made while they had capacity.
The word “statutory” can make the arrangement sound automatic. In reality, every application depends on its own evidence. The court is making a deeply personal decision about P’s estate, family relationships and wishes, so the process is necessarily careful.
When does someone lack the capacity to make a Will?
A diagnosis of dementia, a learning disability or a brain injury does not automatically mean somebody cannot make a Will. Capacity is considered in relation to the particular decision at the time it needs to be made.
Someone may need help managing bills or investments but still be capable of understanding a Will. Equally, a person may appear comfortable in everyday conversation yet be unable to understand the decisions involved in distributing a complex estate.
When considering whether someone can make or change a Will, questions include whether they can understand:
- what making or changing a Will means;
- the broad extent of the money, property and other assets they own; and
- how the proposed Will may affect people who might reasonably expect to benefit, including those who would receive less or be left out.
A proper capacity assessment is therefore essential. It should not be assumed that a relative has lost testamentary capacity simply because they are elderly, unwell or making a decision with which other people disagree.
When might a statutory Will be needed?
There are several situations in which an application may become appropriate.
A person may never have made a Will and now be unable to do so. If the intestacy rules would produce an outcome that does not reflect their relationships or responsibilities, a statutory Will could be considered. For example, a long-term unmarried partner, stepchild or close friend may receive nothing automatically.
An existing Will may also have become seriously outdated. It might leave the estate to somebody who has since died, overlook a person P later supported, or reflect family circumstances that changed many years ago.
Sometimes the value or nature of the estate changes dramatically after capacity has been lost. A person may receive a substantial damages award following an accident, inherit assets, sell a business or move from their long-term home. The existing Will may not deal sensibly with the new position.
Other applications arise after changes within the family. A beneficiary may have died, a dependent relative may now require long-term support, or the existing Will may create avoidable uncertainty and conflict.
None of these circumstances guarantees that the court will approve a new Will. The question is always whether making the proposed statutory Will is in P’s best interests—not whether it would be more convenient or financially attractive for the applicant.
Can an attorney or deputy change the Will?
No. An attorney acting under a Lasting Power of Attorney or Enduring Power of Attorney cannot make or change P’s Will. A property and financial affairs deputy cannot do so using their general deputyship powers either.
They may be able to make an application to the Court of Protection, but the final decision belongs to the court.
This is an important limit. An LPA can give trusted people authority to manage bank accounts, property and other financial affairs during a person’s lifetime. It does not transfer the personal right to decide who receives their estate after death.
Applications are often brought by a deputy, attorney, family member or another person with a genuine interest in P’s affairs. Because the applicant may also benefit under the proposed Will, the court will look carefully at possible conflicts and the evidence supporting the suggested arrangements.
How does the court decide what is in the person’s best interests?
The Court of Protection does not simply ask family members what they would like to happen. Nor does it automatically divide the estate equally to avoid disagreement.
It considers P as an individual. Relevant factors can include their past and present wishes and feelings, beliefs and values, previous decisions, relationships, financial commitments and the people for whom they might reasonably have wished to provide.
An earlier Will, letters, notes, conversations and a consistent history of gifts or support may all help show what mattered to P. The court will also consider the effect of the intestacy rules, the size and nature of the estate, potential claims against it and the practical or tax consequences of different options.
P’s wishes are important, but the court is not required to recreate the decision they would definitely have made. It must weigh all the relevant circumstances and reach the outcome it considers to be in their best interests.
What information is needed for an application?
A statutory Will application requires considerably more than a draft document. The court needs enough information to understand P, their family, their estate and the effect of the proposed changes.
The application normally includes Court of Protection forms, a professional assessment of P’s capacity and a witness statement explaining why the order is sought. Supporting information may include:
- P’s current Will and any codicils;
- the proposed new Will or codicil;
- a family tree and details of relevant relationships;
- information about P’s home, care and present circumstances;
- a schedule of assets, liabilities, income and expenditure;
- an estimate of any potential Inheritance Tax;
- details of existing LPAs, EPAs or deputyship orders; and
- evidence explaining why particular beneficiaries might be included, excluded or treated differently.
People who may be financially affected generally need to be told about the application and have an opportunity to respond. This can include beneficiaries under an existing Will and relatives who would inherit if P died intestate.
The Official Solicitor may be asked to represent P’s interests. If those involved cannot agree—or the court requires more information—one or more hearings may be necessary.
Can the person still be involved?
Yes, as far as their circumstances allow.
Lacking capacity to make the final Will does not mean P’s views become irrelevant. Their present wishes and feelings should be explored carefully, without causing unnecessary distress. The court may also consider what support could help them take part in the decision.
This reflects a wider principle of the Mental Capacity Act: people should be encouraged and supported to participate in decisions about their own lives wherever reasonably possible.
How much does a statutory Will application cost?
At the time of writing, the Court of Protection application fee is £432, with a further £259 payable if the court holds a hearing. Fee remission may be available in some circumstances.
Those court charges may be only part of the overall cost. There can also be fees for capacity evidence, specialist legal advice, barristers and the Official Solicitor’s involvement. The usual position in property and financial affairs cases is that costs are paid from P’s estate, although the court can make a different costs order—particularly where somebody has acted unreasonably.
The process can also take time, especially if family members disagree or important evidence is missing. Where P has only a short time to live, an emergency application can be made, but urgent cases still require clear evidence and immediate specialist advice.
Planning while capacity remains is usually simpler
A statutory Will provides an important safeguard, but it is not a substitute for making and reviewing your own Will while you are able to do so.
Writing a Will early allows you to make personal choices, explain your intentions and select your own executors. Regular reviews can keep those arrangements aligned with changes such as marriage, bereavement, a new home, grandchildren or a significant shift in finances.
A Lasting Power of Attorney is also valuable for lifetime decisions, but it cannot give an attorney permission to rewrite your Will later. A current Will and suitable LPAs perform different roles and are often most effective when considered together.
Getting the right help at the right time
A statutory Will may be needed when somebody lacks testamentary capacity and dying under their existing Will—or without any Will—could produce an outcome that no longer reflects their life, responsibilities or best interests.
These applications involve detailed evidence, court procedure and potentially competing family interests. If capacity may already have been lost, specialist Court of Protection advice should be obtained as early as possible.
If you still have capacity and want to put clear plans in place before circumstances change, Westfield Wills can help you prepare or review your Will and consider a Lasting Power of Attorney. Call 01756 540 541, email support@westfieldwills.co.uk or contact Westfield Wills.
Important information: This article provides general information about the law in England and Wales and does not constitute legal, financial or tax advice. Court of Protection applications and questions of mental capacity depend on individual circumstances. Fees and procedures may change, so current specialist advice should be obtained.
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