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Statutory wills

A statutory will is a will made on behalf of someone who is over 18 but does not have capacity to make a will for themselves. A statutory will can only be made through an application to the Court of Protection.
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Applications are most commonly made by the deputy or attorney for the person who lacks capacity

However, anyone can make an application but unless they fall within an exempt category, permission from the Court of Protection is required before the application can be made.

You can make an application without permission, if you are one of the following:

  • deputy appointed by the court of protection
  • An attorney under a lasting power of attorney or an enduring power of attorney
  • A person who would become entitled under an existing will or intestacy
  • Someone for whom the person who lacks capacity would be expected to provide for.

The Court of Protection will make a decision based on the best interests of the person who has lost capacity.

but the court will also consider the person’s own wishes, past and present, any beliefs, values and feelings; as well as the views and opinions of other people who know the person as to what is in the best interests of the person
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Frequently Asked Questions

  • What is a statutory will?

    This is the name given to a will that can be put in place for a person who is over 18 and has lost capacity to make a will themselves (e.g. because they have had a serious illness, brain injury or they have dementia).  

    An application for a statutory will has to be made to the Court of Protection.

    A statutory will is effective if the person for whom the will is required is domiciled in England and Wales.  It deals with any property inside England and Wales.  A statutory will is ineffective in dealing with any immovable property (such as land and property) outside England and Wales, but is effective in dealing with moveable property (such as bank accounts and investments) outside of England and Wales.

  • When is it appropriate to apply for a statutory will?

    The will may be required because the person who has lost capacity does not have a valid will in place, or their current will is out of date because there has been a change in their circumstances.

    You can apply for a statutory will when the person is not able to understand:

    • What making or changing a will means
    • How much money they have or what property they own
    • How making or changing a will might affect the people they known (either those mentioned in the will or those left out).

    Without a statutory will a person’s estate will be dealt with in accordance with their last will (which may be out of date), or if there is no will in place, then the estate will be distributed in accordance with the rules of intestacy which may not be what the person wants.  

  • What does the application process involve?

    The application is usually made by the person’s deputy or attorney.  Other people can make an application for a statutory will, but they made need the permission of the Court to do so. 

    The Court of Protection will make its decision based on the best interests of the person who has lost capacity. They will also consider the person’s own wishes, past and present, any beliefs, values and feelings; as well as the views and opinions of other people who know the person as to what is in the best interests of the person.

    Information and documents need to be sent to the court for them to consider the application, including:

    • Assessment of capacity, using a specific Court of Protection form (COP3)
    • Information about the person for whom the statutory will application is being made, e.g.:
      • a family tree
      • their financial information (assets, income, expenditure)
      • their current and future needs
      • accommodation and costs
      • medical condition and life expectancy
    • A detailed statement setting out the background of the incapacitated person and how their estate would be distributed under the proposed will and also if they were to die without the statutory will being made.  
    • Copies of any existing wills and amendments or codicils
    • A copy of the proposed will or codicil in draft form 
    • The consent of the proposed executors and beneficiaries 
    • Details of any expected inheritance tax liability that may occur due to the statutory will

    It is advisable to get professional help in making the application.

    The Court of Protection will confirm that they have received the application and will put the matter before a judge to issue an initial directions order stating what should happen next.  This might include an order to tell the Official Solicitor about the application.  It may also require you to tell anyone who is named in an existing will and who might be affected by the proposed statutory will, or if there is no will, anyone who might benefit under the intestacy rules, about the application. 

    A court hearing might be needed if everyone involved does not agree with the terms of the proposed will.  In this case, the court will appoint the Official Solicitor to represent the person who has lost capacity. 

    Once the statutory will has been agreed by the Court a final copy of the will must be executed (signed) by the authorised person, in the presence of two witnesses and then sealed with the official seal of the court.  

    An application for a statutory will usually takes several months and each case varies depending on the circumstances and whether there are disputes over the will between family members or any other interested parties.  However, if a statutory will is required urgently because the person’s life expectancy is short, it is possible to make an urgent application to the Court of Protection.  

  • Who is the Official Solicitor?

    The Official Solicitor is part of the court’s system in England and Wales and acts on behalf of those who lack capacity to represent themselves in court proceedings.  In statutory will applications, the Court usually appoints the Official Solicitor to act for the incapacitated person as their ‘litigation friend’. 

    The Official Solicitor may ask for more information about the person and their circumstances.  The person making the application will work with the Official Solicitor to reach an agreed draft of the will, which is then approved by the Court. 

  • How much does a statutory will cost?

    The court fee for making an application for a statutory will is £371.  Other fees may apply, for example, if the court decides to hold a hearing you may also have to pay £494 hearing fee and the Official Solicitor’s fees if one is appointed.  There will also be solicitor’s fees if you appoint a solicitor to assist you with the application.  In general, the costs of the application will be paid out of the person’s estate for whom the will is for. 

  • Who can apply for a statutory will?

    Anyone can apply as long as they have permission from the Court of Protection before making the application.  However, certain people are exempt from obtaining the Court’s permission before making an application and they include:

    • Court appointed deputies
    • Attorneys under an LPA or EPA
    • Someone who, in an existing will or through the intestacy rules, might become entitled to property, for example a spouse or civil partner
    • Someone who the person who has lost capacity might be expected to provide for
  • How can we help?

    Applications to the Court of Protection require a number of specific forms to be completed and the court’s procedures will need to be followed to obtain an order. We can guide you through the processes and assist you with the completion and submission of the forms (which can include serving notices on interested parties).

  • "Thank you Mr Ashby for being so helpful. We are so pleased with the kind and prompt service and the sensitive way you helped us to understand and put in words what we wanted and needed"
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    client
Minehead
Senior Chartered Legal Executive
Taunton
Associate Solicitor

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