What is a Statutory Will?

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Latest statistics reveal that almost 70% of UK adults do not have a Will, despite the significant consequences of not having one.

But what happens if your loved one wants to make a Will but does not have the mental capacity to do so? In some cases, someone who lacks the ability to make a Will can make a Statutory Will. Our Court of Protection solicitors explain more in this blog.

What is a Statutory Will?

A Statutory Will is a Will that has been approved by the Court of Protection on behalf of someone (over the age of 18 years) who lacks testamentary capacity to make a Will themselves.

Despite this extra layer of approval, once signed off, a Statutory Will has the same effect as a standard Will when it comes to estate planning and protecting loved ones’ interests.

When is a Statutory Will necessary?

 When considering whether your loved one or, if you are a Deputy, ‘P’ (the Protected Party), requires a Statutory Will, there are several things to consider:

Do they have capacity?

Capacity is time and decision-specific, and this applies to making a Will. It may be that P lacks the capacity to manage their finances but does retain the capacity to make a Will.

The capacity ‘threshold’ for making a Will is different to that of managing finances because the decisions you make when drafting a Will and how you make them are very different to the ones you make when managing your finances.

Under the Mental Capacity Act 2005, there are five principles a Deputy should apply when making decisions on behalf of a P:

  1. Presumption of capacity: a person must be assumed to have the capacity to make their own decisions unless it is proven otherwise.
  2. Support for decision making: people must be given all practicable help to enable them to make their own decisions before it can be concluded that they are unable to do so.
  3. Unwise decisions: a person cannot be treated as lacking capacity simply because they make an unwise decision. Everyone has the right to make their own choices, even if those choices seem unwise.
  4. Best interests: when a decision must be made for someone who lacks capacity, the act or decision must be done in their best interests.
  5. Least restrictive option: before acting, all steps must be taken to ensure the option chosen is the one that is least restrictive of the person’s basic rights and freedoms.

If there is any doubt surrounding P’s capacity to make a Will, a formal capacity assessment should be completed. This will be needed as part of any application made to the Court of Protection, as they will only get involved if there is clear evidence that P cannot make the decision themselves.

Do they already have a Will?

It may be that P created a Will whilst they still had the capacity to do so. If this is still appropriate, there is nothing further for you to do besides reviewing the Will regularly or as and when larger life events happen to ensure it remains appropriate. Read more about when to update your Will here.

If there is a Will already in place, the Court of Protection will want strong evidence as to why it is no longer suitable and why a Statutory Will is needed.

Are intestacy rules sufficient?

When someone dies without a Will, intestacy rules apply, and the law dictates who inherits their estate (prioritising their closest living relatives). Read more about what happens if you die without a Will here.

If the intestacy rules are sufficient, it may not be in P’s best interests to apply for a Statutory Will. However, every family is different, and it may be that, whilst P lacks the capacity to make a Will, they have expressed strong feelings about whom they would want or not want to inherit. Or it may be that their family circumstances do not align with the intestacy rules, and therefore a Statutory Will is needed. It is important to ensure that P’s Will is prepared as closely in line with what they would have wanted if they had the capacity to decide themselves.

Is a Statutory Will proportionate?

A Deputy should consider P’s level of assets and whether it is appropriate for a Statutory Will application to be made. If P’s assets are low, it may not be appropriate to incur the costs of the application.

Statutory Will application costs include:

The extent of these costs will largely depend on how complex the Will is and whether the application is likely to be contested by family members.

If a professional Executor is being considered, their costs for administering the estate will also need to be considered.

Choosing an appropriate Executor

The Deputy’s authority ends when P passes away, with the Executors stepping in to ensure that their estate is dealt with in accordance with their Will. The Deputy should therefore carefully consider who would be an appropriate Executor for P’s estate.

In the absence of a Will, anyone can apply to the Court for permission to administer P’s estate in accordance with the intestacy rules. This may not be appropriate, particularly if P has a large estate with significant assets that need to be dealt with. If P has significant assets that need to be dealt with or if, due to family circumstances, it may not be appropriate for the Deputy, a family member or friend to be appointed. An alternative option could be to look at appointing a professional Executor, such as a Probate and estate administration solicitor.

How to apply for a Statutory Will

For a Statutory Will to be put in place, you need to send an application to the Court of Protection. As part of this application, the Deputy will need to include, at the very least:

  • A copy of the capacity assessment confirming P lacks the capacity to make a Will.
  • Confirmation of P’s capital, income and expenditure.
  • A copy of the proposed Will, which should be drafted by a professional Will Writer.
  • If applicable, an Inheritance Tax calculation should be prepared by a Will writer.
  • Details as to why the proposed Will is in P’s best interests.
  • Details of any thoughts, wishes and feelings P has expressed regarding their Will.
  • Details of any relevant thoughts, wishes and feelings P’s family have expressed.
  • Details of P’s family and any circumstances surrounding those relationships.

Notifying beneficiaries

As part of the application, the Deputy will be required to notify anyone who would otherwise inherit or benefit more under the intestacy rules, i.e. are negatively impacted by the proposed Will. This should happen unless you can prove to the Court that notifying that person would put P at risk. This gives those people an opportunity to raise any concerns they might have about the proposed Will to the Court of Protection. Notifying beneficiaries is not only an added step to protect P’s interests but also heads off any concerns before the Will is executed to reduce the possibility of future claims on the estate.

The role of an Official Solicitor

Once the Statutory Will application is sent to the Court, they will instruct an independent solicitor, otherwise referred to as the ‘Official Solicitor’ (‘OS’), to act as litigation friend for P.

The role of the OS is to ensure that the proposed Will is in P’s best interests and is an added layer of protection for P. They will:

  • Review the application, including the proposed Will.
  • Meet with P.
  • Consent to the Statutory Will application (once satisfied it’s in P’s best interests).

It is not uncommon for the Official Solicitor to query certain aspects of the proposed Will before consenting to the application. Remember, this is all to ensure P’s best interests are protected.

The Court will then review the application and OS’s consent in its entirety and, unless they have any further queries or concerns, issue an Order granting the Deputy authority to execute the Will on P’s behalf. Once signed, it needs to be sealed by the Court of Protection. Once sealed, the Will can be stored and then used upon death in the same way any other Will is used.

Need help with a Statutory Will application?

If you need to make an application for a Statutory Will or if you need assistance preparing a Will to form part of the Statutory Will application, call 0117 325 2929. Alternatively, fill out this enquiry form, and we will be in touch.

* Court of Application fees are correct as at December 2025.

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