When someone lacks capacity to make a will, the Court of Protection can authorise a “statutory will” on their behalf. These applications can be sensitive, particularly where the proposed will would exclude a family member who would otherwise inherit under the intestacy rules (i.e. the legal rules that dictate who receives a person’s estate if they die without a valid will).
The recent case of Fairweather v AG & Anor [2026] EWCOP 24 (T1) considered whether the Court should allow a statutory will application to proceed without serving an estranged father. If no will was approved by the court, he would be entitled to half of his daughter’s estate under the intestacy rules.
The decision is a useful reminder that, even in difficult family circumstances, the Court will be reluctant to exclude a person from the proceedings when they may lose an entitlement on death, unless they have first been given an opportunity to object.
What is a statutory will?
A statutory will is a will made on behalf of someone who lacks testamentary capacity. The Court of Protection has power under the Mental Capacity Act 2005 to authorise the execution of a will for a person who cannot make one themselves.
Applications are often made where a person has received a substantial compensation award, has significant assets, or where the intestacy rules would not reflect their family circumstances or wishes.
Background to the case
AG is a young woman who lacks capacity to manage her property and affairs and to make a will. She had a large estate following a compensation claim arising from an acquired brain injury suffered after she was born. Her professional property and affairs deputy applied for authority to execute a statutory will on her behalf.
AG lived with her mother and brother. The proposed statutory will left AG’s estate to her mother, or if her mother had died, to her brother. Without a statutory will, AG’s father (“CG”), would have been entitled to AG’s estate when she died equally with her mother.
The issue for the Court
In statutory will applications, the Court requires anyone whose inheritance position may be materially affected to be served with the application, meaning they are formally provided with the court documents and given an opportunity to respond. The key issue in this case was whether CG should still be served, despite having been largely absent from AG’s life and despite concerns about his historic conduct, including allegations of violent assault against AG’s mother.
The Court confirmed that the starting point in statutory will applications is that a person who may be materially affected should usually be served. Practice Direction 9E requires certain people to be named as respondents, including prospective beneficiaries under an intestacy where there is no existing will.
The Court has power to dispense with service, but that power will only be used in exceptional circumstances.
Protection and fairness
When reviewing the case, on the one side the Court considered AG’s privacy, her family circumstances and the need to protect her and her family from possible harm.
On the other side, the Court had to consider fairness to CG. If the statutory will was approved, CG could lose an inheritance he would otherwise receive if AG died without a will. The Court therefore had to consider whether it would be fair to make that decision without giving him the chance to know about the application and respond.
The Court confirmed that this was mainly a procedural question, rather than simply a decision about what was in AG’s best interests. AG’s welfare and circumstances were deemed to be very important, but the Court also had to consider whether CG should have the opportunity to take part in proceedings.
The decision
The Court decided that CG did not need to be formally served with the full application documents but directed that he needed to be notified that the application had been made.
Although the case was described as difficult and borderline, the Court was not satisfied that the risk of harm to AG, her mother or her brother justified depriving CG of the opportunity to participate. The Judge noted that around 20 years had passed since the incident of alleged abuse in 2006, that there was no evidence of recent violent or criminal behaviour by CG, and that CG had apparently made no enquiries about AG’s compensation claim for many years.
The Court considered CG’s potential loss of inheritance to be an important factor in its decision. If a statutory will were approved without him knowing or being involved, he may lose the inheritance he would otherwise receive under the intestacy rules and may later have to incur expense challenging the order if he became aware of it.
Practical lessons from the case
The case provides several important points for deputies, attorneys, families and anyone considering a statutory will application, as summarised below:
- Excluding a potential beneficiary from the process for approving a statutory will is unusual. The Court will expect someone who stands to lose an inheritance to be given the opportunity to participate in proceedings;
- Where there are concerns about harm, intimidation, abuse or safeguarding, those concerns should be supported by clear evidence;
- The Court may consider alternatives to complete exclusion of a party, which could include redacting sensitive information, such as addresses or other details that could expose the protected party or family members to risk;
- Historic estrangement, even coupled with alleged serious historic misconduct, may not be enough on its own to prevent a party from participating in statutory will proceedings. The Court will consider whether there is evidence of a current or real risk of harm; and
- The Court must protect procedural fairness and the rights of those who may be directly affected by the outcome, and cannot simply consider the protected party’s best interests in isolation.
Why this matters
Statutory will applications often arise in emotionally complex circumstances. Families may be estranged. There may be allegations of financial abuse, domestic abuse, coercive behaviour or long periods of no contact. At the same time, the Court of Protection must ensure that anyone whose rights may be affected is treated fairly.
Fairweather v AG shows that the Court will scrutinise applications to exclude a potential beneficiary very carefully. It is not enough to say that someone has had little involvement in the protected party’s life or that their involvement may be unwelcome. The Court will want to know why service would create a sufficiently serious risk, and whether that risk can be managed in another way.
How we can help
Statutory will applications and Court of Protection disputes can involve sensitive questions about capacity, inheritance, family relationships and safeguarding. Seeking early advice can help ensure that the right evidence is gathered and that the application is handled appropriately from the outset.
