Skip to main content

Contact us to arrange your
FREE initial consultation

Call me back Email us
 

Most people know that making a will is a good idea, as it allows you to say how your estate should be dealt with when you pass away and makes dealing with your estate much easier for your loved ones. But what if someone lacks the mental capacity to make a will?

Applying to the Court of Protection to make a statutory will allows you to modify or create a will for someone who lacks mental capacity, providing certainty over the future of their estate and helping to avoid confusion and conflict between family members.

Our statutory wills solicitors have decades of experience helping clients apply to the Court of Protection on behalf of vulnerable people. We can provide clear, sensitive guidance to help you put in place a fair, legally-sound will for a vulnerable person.

Contact us today

  • No upfront costs & no win, no fee
  • Accredited legal experts
  • Help accessing rehabilitation
  • Free & no obligation initial advice

Call us free 0800 124 4845

Call our specialist legal teams Monday - Friday, 9:00 - 17.30 for free, no obligation advice.

Call us now

Start your claim today

Complete our simple form to start your claim and get a call back back from our expert legal team.

Start your claim

Statutory Wills frequently asked questions

What is a statutory will?

If a person is over 18 and lacks the mental capacity to make a will, then an application can be made to the Court of Protection for a statutory will to be made on their behalf.

The Mental Capacity Act 2005 allows the Court to authorise the creation of a will for someone who does not have capacity to make a will themselves. The person who made the application can then make a will for the vulnerable personand usually the Official Solicitor is appointed to represent them as an independent person.

A statutory will should reflect the best interests of the vulnerable person in whose name it is being made. The applicant and the Court will need to consider what the person would have put in their will if they were able to make it themselves, bearing in mind the vulnerable person’s values and the decisions they have made in the past.

A statutory will can cover all of the issues a standard will does, including what will happen to the vulnerable person’s home, their savings, investments and any other assets.

Why do you need a statutory will?

Without a statutory will, a person’s estate will be dealt with in accordance with their last will (which may be out of date) or, if there is no will, then the ‘intestacy rules’ will be followed. The intestacy rules require the deceased’s assets to be distributed to the next of kin in strict order, which may not be what the deceased would have wanted.

Making an application to the Court of Protection to create a statutory will can allow an out-of-date will to be modified or a new will to be created, helping to ensure a vulnerable person’s estate will be dealt with in the way they would have wished.

When should a statutory will be made?

The right time to make a statutory will depends on the circumstances. Our team will be happy to advise you so you can be confident that you are taking the necessary steps at the appropriate time. If a person does not have ‘testamantary capacity’ to makea Will then an application should be made to the Court of Protection. A person will not have capacity to make a Will if they cannot:

  1. Understand what a Will is and it’s effect
  2. Understand what they own and what they are giving away under the Will
  3. Understand that others may have a claim on their estate

Typically, people will want to think about applying for a statutory will at the point where a loved one loses mental capacity, where a vulnerable young person is nearing the age of 18 or where there has been a significant change in a vulnerable person’s circumstances, such as if their spouse has passed away, they have received an inheritance or they have been awarded personal injury compensation.

While an application can only be finalized once the vulnerable person it relates to is over the age of 18, the preparation for an application can be started once a person turns 17. This is because it can take several months to collect the information required and prepare the application, then several more months for the application to be processed.

Who can apply to the Court of Protection to make a statutory will?

The application to create a statutory will is usually made by someone acting as a Court of Property Deputy for the person for whom the will is being made. However, if an adult made a Lasting Power of Attorney (LPA) before losing capacity and it has been regsitered, then their Attorney can make the application.

Other people can make an application for statutory wills, but may need the permission of the Court to do so.

How do you apply to the Court of Protection to make a statutory will?

Applications for a statutory will involve considerable thought and paperwork, with clear guidelines set out by the Court of Protection that must be followed to ensure a successful application. All of the information required by these guidelines must be included in the application, otherwise it could be rejected or delayed, resulting in additional cost, time and stress for you.

The information includes a family tree, financial information and a witness statement setting out the background about the incapacitated person, their medical condition, assets and needs, and how their estate would be distributed under the proposed will.

Our statutory wills solicitors can guide you through the entire application process, including filling out the relevant forms and ensuring you have all of the required supporting information. This can help to make applying for a statutory will much simpler, faster and easier .

As part of your application, you will need to submit the following to the Court of Protection:

An application form (COP1) – setting out the nature of the application, your details, the details of the vulnerable person and details of anyone who will need to be notified of the application e.g. relatives of the vulnerable person.

A witness statement (COP24) – allowing you to provide written evidence about the vulnerable person on whose behalf you are applying for a statutory will.

An information form (COP1C) – giving detailed information about the decisions you need to make for the vulnerable person about their will.

An assessment of capacity form (COP3) – with evidence from an approved medical professional about the capacity of the vulnerable person the application relates to.

What happens after you submit an application for a statutory will?

The Court can accept the application “on the papers”, allowing you to move straight ahead with creating a statutory will, or alternatively there may be a hearing where the court believes there are issues to resolve before permission to create a statutory will can be granted. A hearing may be required if, for example, a relative of the vulnerable person opposes the application.

In either case, if the application is granted, the Court will normally appoint the Official Solicitor to advise and act for the incapacitated person in the creation of a statutory will. The person making the application works with the Official Solicitor to reach an agreed draft of the will, which is then approved by the Court.

The Official Solicitor will consider what the person would have wanted and who they would include in their will if they were able to voice their wishes.

What happens during a Court of Protection hearing for a statutory will?

If the Court of Protection decides a hearing is required before a decision can be made about creating a statutory will, the various parties involved will be invited to present evidence for their position and the Court will then decide whether to grant the application. Court of Protection hearings usually take place in private, but can take place in public if the Court feels this is appropriate.

We strongly recommend having the support of a solicitor with strong experience in Court of Protection cases if a hearing is required for your application. This helps to ensure your case is prepared and presented in the most effective way and that you have the best chance of having your application granted.

Costs of the Application

The general rule is that the costs of the proceedings (including the other parties costs, if any) are paid from the applicants estate.

Statutory wills that we have successfully applied for

Janine – a young adult injured at birth

We secured a statutory will for a young adult, Janine, who suffered a brain injury at birth and is estranged from her father. Without a statutory will, Janine’s estate would potentially have been distributed equally between her parents.

Significant efforts were made to trace the father to inform him about the application, but he could not be located. The will approved by the Court left a sum of money to Janine’s school, which is a charity, and small sums of money to her grandmother and aunt, with the majority of the estate passing to Janine’s mother, who has looked after Janine throughout her life.

Eric – a young adult with brain injury

We have also secured a statutory will for a young adult, Eric, who suffered a serious illness in infancy, which was not properly treated, leaving him with brain damage. His parents’ relationship ended acrimoniously and Eric has not seen his father for over 10 years. The proposed statutory will excluded Eric’s father.

As part of the application to the Court, a request was made that the father not be informed about the application, due to the difficulties between his parents, The Official Solicitor’s position was that this was unfair, so the father was informed. However, as no objections to the will were received, the Court approved a statutory will, leaving the entire estate to Eric’s mother.

James – a 67-year old with learning difficulties

We put in place a statutory will for James, a 67-year old man who was born with learning difficulties. In 2006 James was involved in a car accident in which he suffered serious spinal injuries and he received an award of damages. The will appointed professional Executors to administer the estate because James’ siblings did not feel able to take on the role. James’ estate will now be divided between his closest family members who see him regularly.

Speak to our statutory wills solicitors today

Our advice is to always get professional help with a statutory will to ensure all the essential details are taken care of and to keep the application process as smooth and stress-free as possible. 

Get help today
  • No upfront costs & no win, no fee
  • Expert rehabilitation help
  • Free & no obligation initial advice

Meet your specialist team

Our specialist Statutory Wills team are considered leaders in the field and have a significant amount of expertise.
Ruth Meyer photo

Ruth Meyer

Partner

Alexander Wright headshot

Alexander Wright

Partner

Anne Pearson headshots

Anne Pearson

Senior Paralegal

Sue Clark photo

Sue Clark

Senior Associate – Solicitor

Lindsay Da Re

Lindsay Da Rè

Associate - Solicitor

Alex Edwards

Alex Edwards

Associate - Solicitor

Jessica Jarvis Headshot

Jessica Jarvis

Associate - Solicitor

Dani Pini headshot

Dani Pini

Solicitor

Ellie Adams profile picture

Ellie Adams

Senior Paralegal

Katarina Ahmed

Katarina Ahmed

Paralegal

Daisy Fox

Daisy Fox

Paralegal

Lauren Hall headshot

Lauren Hall

Paralegal

Maria Hobbs

Maria Hobbs

Paralegal

Sue headshot

Sue O'Connell-Davidson

Paralegal

Nadine Silas-Richards

Nadine Silas-Richards

Paralegal

Victoria Stewart

Victoria Stewart

Paralegal

Niki Tarrant headshot

Niki Tarrant

Senior Paralegal

Emma Wheeldon headshots

Emma Wheeldon

Senior Paralegal

Ewelina Wolanin headshot

Ewelina Wolanin

Paralegal

James Pantling-Skeet headshot

James Pantling-Skeet

Senior Associate – Chartered Legal Executive

Ruth Meyer photo
Alexander Wright headshot
Anne Pearson headshots
Sue Clark photo
Lindsay Da Re
Alex Edwards
Jessica Jarvis Headshot
Dani Pini headshot
Ellie Adams profile picture
Katarina Ahmed
Daisy Fox
Lauren Hall headshot
Maria Hobbs
Sue headshot
Nadine Silas-Richards
Victoria Stewart
Niki Tarrant headshot
Emma Wheeldon headshots
Ewelina Wolanin headshot
James Pantling-Skeet headshot

Related news

Related cases

Statutory Wills cases

View all

Awards & accreditations

Our medical negligence and personal injury teams have been nationally recognised for over 20 years because of their expertise, empathy and commitment to securing maximum compensation for our clients.

              Brake | The Road Safety Charity

What our clients say

"Review following handling of our family's social care case."

We contacted Boyes Turner earlier this year after we ran into a dispute with our local authority. This was about a social care matter and learning disability.
The case was handled with professionalism and tact.

Andrew
Rated Excellent 4.8/5