Legal assistance with statutory wills

What is a statutory Will?

If your loved one is unable to handle their own personal and financial affairs, you may be able to write or change a Will on their behalf. This is known as making a statutory Will, and it will apply when someone does not have the mental capacity to write or update a Will themselves.

Can I make a Will for someone without capacity?

Anyone can apply to make a Will on behalf of a person who is lacking mental capacity. But you must get the Court of Protection’s approval before the Will can become legally binding.

You should only apply for a statutory Will if it is absolutely necessary and in the best interest of the person who lacks capacity. This could apply if the individual has:

• No existing Will
• An estate that has changed in value
• A named beneficiary who has passed away

A statutory Will could also be applied for on the basis of tax purposes. In these instances, it would need to be proven that any changes made would be in the best interest of the individual, rather than any beneficiaries.

When deciding whether to approve your statutory Will application, the courts will consider:

• The vulnerable person’s past and present feelings – this may involve looking at relevant statements made when the individual had capacity
• The beliefs and values that would be likely to influence their decision-making
• Any other factors the vulnerable person would be likely to consider

The Court of Protection will also take into account the views of anyone who cares for the individual in question, as well as consulting their attorney or deputy where these are in place.

How do I make a statutory Will?

There are four key stages involved in making a statutory Will:

1. Applying for a statutory Will
   You’ll need to complete a number of forms that will detail your proposal for a new statutory Will. These should be sent to the Court of Protection, along with supporting documents such as a copy of an existing Will and a copy of the proposed new Will or codicil.
2. After you apply
   The Court of Protection will send a letter to confirm they’ve received your application. You should also get a stamped copy of the application form and a ‘directions order’ – this will tell you how to update anyone who could affected by the new Will.
3. Getting a decision
   You’ll be told if your application has been approved or rejected. If the court doesn’t have enough information to make a decision, you may be asked to submit further documents or to attend a court hearing.
4. Finalising the Will
   If your application is approved, you will be sent a court order that confirms this. You’ll then need to sign two copies of the Will with two witnesses present. These should be sent back to the Court of Protection for the official seal to be applied.

Applying for a statutory Will can become complicated, but a solicitor can help you through the process. They will be aware of what your application should include to give it the best chance of court approval, so you’ll have the reassurance of knowing an expert is by your side.

Statutory Will FAQs

How do I determine whether someone is lacking mental capacity?

Under the Mental Capacity Act 2005, an individual is considered to lack capacity if they are unable to make their own decisions. This could be due to a serious brain injury or a degenerative disease like Alzheimer’s.

If you’re thinking about applying for a statutory Will, you’ll need to judge whether the individual understands:

• What making or changing a Will means
• How much money they have or the property they own
• How making or changing a Will might affect the people they know

It’s important to note that someone who has lost the ability to manage their finances may still have the capacity to make a Will. This is why it’s important to seek legal advice before starting the application process.

Will the Court of Protection be involved in every decision?

There are strict guidelines surrounding statutory Wills, and the Court of Protection will need to approve of any terms set out in the document. This will also apply if you’re an attorney or court-appointed deputy.

Some examples of decisions that would need to go through the courts include:

• Deciding where the vulnerable person should live (if there is a disagreement)
• Signing a Will on behalf of someone lacking capacity
• The making of substantial gifts from the vulnerable person’s estate

Ultimately, you will need to be able to prove to the court that the new Will acts in the best interests of the person in question.

Can I challenge a statutory Will?

The Court of Protection seeks to act in the best interests of the person who is lacking mental capacity, but there are other factors they will consider too. For example, if a new statutory Will could negatively affect existing beneficiaries, they will have the option to contest the proposals made.

Challenging a statutory Will could also be necessary if you believe that the individual involved has capacity to write their own Will, or if you think the new proposals go against what they would have wanted.

Our solicitors are experienced in handling disputes related to Wills and probate. They can help you navigate the process of contesting a Will, taking some of the pressure off your shoulders.

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