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Written on 31st January 2023 by Lindsay Da Rè


What is a Statutory Will?

A will is a legal document setting out what a person (“P”) wishes to be done with their property when they die. As long as it has been validly made it should be binding and P’s wishes should be carried out. But what happens if P does not have the mental capacity to make a valid will?

In some cases there may be no problem with simply relying upon the Intestacy Rules – the law governing how property passes when there is no valid will – as there may be no reason to believe that P would have wished their property to pass any differently.

A simple example of this may be where P is happily married but has no other family or close friends. In such circumstances it would be entirely reasonable to assume that P would be happy for their entire estate to pass to their spouse upon their death. This is what would happen automatically, under the operation of the Intestacy Rules, and so no will would be needed to give effect to P’s wishes.

However, in many cases there may be reason to believe that P would not wish their assets to pass to certain family members who would inherit from them under the operation of the Intestacy Rules. Examples might include where P is separated from a spouse but has not obtained a divorce, or where P is estranged from a parent or child or sibling who would share in their estate via the Intestacy Rules.

There could also be reason to believe that given the opportunity P would wish to benefit certain friends, family members or charities who would receive nothing from P’s estate under the Intestacy Rules.

In such cases, the Court of Protection can approve a will proposed for P and authorise another person to execute it on P’s behalf. This kind of will is called a Statutory Will.

What is testamentary capacity?

Testamentary capacity means the ability to understand the decisions involved in making a will well enough to be able to make or alter one validly. The test for whether a person can do this was set out by the court all the way back in 1870, in a case called Banks v Goodfellow.

In short, in order to have testamentary capacity a person must:

  • Understand what a will is for and what it does;
  • Have some understanding of the extent of the property that will be affected by the will;
  • Be aware of the people for whom they might normally be expected to provide in their will; and
  • Not be suffering from any “delusion of the mind” that would affect their decisions about whether or not to provide for those people (e.g. wishing to leave a family member out of their will because of a false belief that the person is secretly plotting to harm them, or is possessed by a demon, or some other such delusion.)

The level of understanding required may vary depending on P’s particular circumstances. A larger and more complicated estate will be likely to require a greater level of understanding than a more simple estate with modest assets.

However, regardless of the size of their estate, if P cannot meet all four of the criteria above then they will lack testamentary capacity and be unable to validly make or alter a will.

What is involved in an application to execute a Statutory Will?

When making an application to execute a Statutory Will for P, the Court of Protection will need to see firm evidence that P’s testamentary capacity has been assessed by an appropriate professional and that it has been determined that they really are unable to make a valid will on their own.

The court will also expect to see evidence that due consideration has been given to any wishes and feelings P may have expressed about how their property should pass after their death. Although P does not have capacity to make a valid will on their own, their wishes are still important and cannot simply be disregarded.

Alternatively, if P’s disability is such that they are unable to express any wishes about the passing of their property, consideration should be given to what P’s wishes might reasonably be expected to be, based on any appropriate evidence available. This might include thinking about personal relationships that have been important to P over the years, family members or friends who have provided care and support to P, or charities from which P has benefited in the past and so may wish to support after their death.

A litigation friend – often the Official Solicitor – will generally be appointed by the court to represent P’s interests within the application. They will have the opportunity to review all of the evidence filed with the court and to comment on whether the proposed will appears to be in P’s best interests.

If you have any questions about applying to execute a Statutory Will for a friend or family member you can contact our Court of Protection Team at or by phone at 0118 959 7711.