A statutory Will allows you to make or change a Will on behalf of someone else where that person lacks the mental capacity to do it themselves.
Given that one of the fundamental conditions for signing a Will is that the person making the Will (the testator) has the mental capacity to do so, the procedure for overriding this and allowing someone else to do it for them is very complex. It requires help from specialist lawyers.
There can be various reasons for making a statutory Will such as the person currently has no Will in place or their current Will makes inadequate provision for carers or other people in the person’s life.
Making a Will in this way requires a detailed application to the Court of Protection. The Court of Protection decides all sorts of matters relating to a person’s welfare or financial affairs where that person can’t make decisions at the time they need to be made. We can guide you on the procedure, costs, timeframe and merits of making a statutory Will application. We can also advise on the likelihood of success.
There is an upfront court fee of £371 and after the application is submitted to court, it can take a minimum of three months to obtain an Order for the Will to be signed. Urgent applications in special circumstances are also possible.
Applying for a statutory Will
- the application begins with a formal medical assessment of the person’s mental capacity as proof that they lack the ability and understanding to make a Will themselves
- a full breakdown of the person’s estate is required together with documentary evidence
- a draft of the proposed Will and a statement by you setting out the reasons why the Statutory Will is needed.
In most cases, the Official Solicitor is appointed to represent the interests of the incapacitated person. Any beneficiaries under an existing Will or under the intestacy rules will be entitled to have their say about the application.
We can advise and guide you through the whole process from submitting the application to executing the Statutory Will.