What is a statutory will?

In Drafting a will

If you want to make or change a will for someone who lacks mental capacity, you’ll need to apply for a statutory will. Find out what it is, who can send off for it, and how to get one.

Last updated: 5 August 2021
 

What is a statutory will?


Making a new will or changing one on someone else’s behalf is a very serious step.

If they lack testamentary capacity to do it themselves, you’ll need to apply for a statutory will drafted and approved by the Court of Protection.

There’s no guarantee your request will be approved. You may find it helpful to chat to a legal professional to make sure it’s the best choice for you, as you’ll need to pay an initial application fee of £365.

This doesn’t include costs for solicitors, court hearings, and Counsel’s fees.
 

Who can apply for a statutory will?

 
  • Attorneys

If the person who’s lost mental capacity held a Lasting Power of Attorney, the attorney acting on their behalf can apply direct to the Court of Protection for a statutory will.

You might like also ‘Your complete guide to Power of Attorney’
 
  • Deputies


Deputies are appointed by the Court of Protection to represent someone who can no longer make decisions for themselves. So, they can apply to the courts for a statutory will.

Find out more in ‘What is Court of Protection deputyship?’
 
  • If you’re not an attorney or deputy


The Court of Protection prefers to approve a statutory will for someone already acting in the best interests of another. If you’re not already an attorney or deputy, you will need to apply to the courts for the right to apply for a statutory will.

You will not need to apply for permission if you are:
  • A Public Guardian
  • A beneficiary in a previous will
  • A beneficiary under intestacy laws
 

Read: ‘What’s the difference between Power of Attorney and Court of Protection Deputyship?’

 

What is the process for getting a statutory will?


After submission, the Court will look at your application, plus any supporting evidence, like medical documents, witness statements, and previous wills if there are any.

You’ll also need to tell (or ‘serve’) the people named in your application:
  • The person receiving a statutory will
  • Any beneficiary under an existing will, who may be financially affected by the new will
  • Any person who would inherit under intestacy laws if there were no will
  • Anyone else named in your application

The Court may also ask you to notify the Official Solicitor. This is someone who represents people in court when they can no longer make decisions for themselves.

You may tell named people by post, fax, email, or in person. They have 14 days to object to your application. If you’re unable to reach an agreement with those you’ve ‘served’, the Court might choose to hold hearings, so it can make a judgement.

Court hearings cost an additional £485.
 

When are statutory wills allowed?

Reasons for approving a statutory will include:
  • Significant increase or decrease in the value of the estate
  • Planning for inheritance tax
  • Beneficiaries have passed away or declined an inheritance
  • Adjusting a will if beneficiaries have already received gifts or inheritance
  • Marriages, separations, or births change the order of inheritance
  • Provisions haven’t been made for certain people
  • An existing will may not be valid

When making a decision, the Court takes into account the person’s past wishes, feelings, values, and beliefs. This might include written documents that offer an insight into what the person would want.

The Court will ask: what would this person do if they could make decisions for themselves?

However, the final judgement is guided by what is in the person’s best interests.
 

What if a statutory will application is declined?

If you didn’t have to attend a hearing, you can lodge an appeal if you disagree with a Court of Protection decision.

You have 21 days from the date the decision was made. You’ll need to send a COP35 form to begin an appeal.
The cost of appeal of £320.
 

What happens when an application is approved?


Upon approval, you’ll receive a court order letting you know the outcome and what to do next.
  • You must sign two copies of the will in the presence of two witnesses
  • Two independent witnesses must sign in your presence

Both signed copies must be sent to the Court of Protection. They will be stamped by the Court’s official seal, making them fully legal and valid, at which point they’re sent back to you.
 

How is a statutory will different to a normal will?


Once valid, a statutory will is identical to a standard will.

The only difference is, a statutory will has been drafted and approved by the Court of Protection and signed by an attorney or deputy.
 

Should I get legal advice?


Applying for a statutory will can cost thousands of pounds, and it’s a long and complicated process. Because of this, it’s wise to talk to a legal professional first. They’ll be able to support your application and guide you through the entire process.

The Law Superstore lets you find and compare solicitors near you. Just tell us a bit about what you need and connect with top legal experts trained in dealing with wills, Power of Attorney, and Court of Protection deputyship orders.


 

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