Statutory Wills Knowledge & Resources

A statutory Will is made and signed on behalf of a person who lacks the capacity to make one themselves. An order of the Court of Protection is required before it can be signed

An application must be made to the Court of Protection for an order authorising a person to sign a Will on behalf on another. The process starts with an assessment of mental capacity of the person the Will is being made for, before forms are completed with details about that person’s estate (such as property, savings and possessions), their family and any existing Will they may have. Assuming the application proceeds without a need for a hearing or any objections it can take around six months.

Anyone who would stand to inherit from the estate before the statutory Will is signed must be informed of the application. They can lodge any concerns or objections to the application which the Court of Protection will consider. Also, any other family members, friends or carers of the person to whom the application relates should be informed.

The applicant then has the authority to sign the Will on behalf of the other person. A copy is lodged with the Court of Protection.

Applying for a Statutory Will is dependant upon the person who would make the Will (“the patient”) lacking mental capacity to make one. Having mental capacity to manage financial affairs and having mental capacity to make a Will are two different things. Even when someone cannot manage their affairs, they may still be able to make a Will. A medical opinion is crucial at the outset.

Anyone who would stand to inherit from the estate before the Statutory Will is signed must be informed of the application. They can lodge any concerns or objections to the application which the Court of Protection will consider. Also, any other family members, friends or carers of the patient should be informed.

Statutory Will applications are not quick although in special circumstances an urgent application may be possible. Assuming the application proceeds without a need for a hearing or any objections it can take around six months.

Not only will the application include a draft of the Statutory Will but must also include a breakdown of the person’s assets, liabilities, income and expenditure, an assessment of their mental capacity and any other reports, valuations or important information to support the application.

The Court will want to know that you have considered the patient’s “best interests”. This might include evidencing decisions they have made in the past, understanding their personal beliefs and values and considering what decision they would make if they could make a Will themselves.

Most statutory Will applications proceed without a court hearing but where the court feels it needs to hear oral evidence then it can direct a court hearing.