Statutory wills

Statutory wills

A statutory will is a will made on behalf of a person who lacks the mental capacity to make a will themselves, following an application to the Court of Protection.

Any statutory will must be made in the individual’s best interests, in accordance with the Mental Capacity Act 2005. The Court will consider a range of factors, including:

  • The person’s past and present wishes and feelings
  • Any written statements made when they had capacity
  • Their beliefs and values
  • Other factors they would be likely to consider if able to do so

When is a statutory will needed?

A statutory will may be appropriate where:

  • An existing will no longer reflects the person’s circumstances
  • There is no will in place and the intestacy rules would not produce a suitable outcome
  • There have been significant changes in family or financial circumstances

The Court will ultimately decide whether making a statutory will, and the terms of that will, are in the individual’s best interests.

How to apply for a statutory will

An application to the Court of Protection will usually involve:

  • Obtaining medical evidence to confirm lack of capacity
  • Considering the individual’s wishes, feelings, beliefs and values
  • Encouraging the individual to participate in the decision-making process where possible
  • Taking into account the views of family members and other relevant parties

If necessary, we can assist in arranging for an appropriate expert to carry out a testamentary capacity assessment through an external provider. Any such assessment would be undertaken by the external expert and would be subject to a separate fee.

The application must be supported by detailed evidence and a proposed draft will.

Notifying relevant parties

A copy of the application must usually be provided to:

  • The individual who is the subject of the application
  • Anyone named in the proposed will
  • Anyone who may benefit under a previous will or under the intestacy rules

These parties have the opportunity to raise any objections or make representations to the Court.

What happens after the application is made?

If the application is not opposed, the Court will often determine the matter on the papers without a hearing.

If there are objections or disputes, the Court may list the matter for a hearing to consider the issues in more detail.

Once approved, the statutory will is executed on behalf of the individual and sealed by the Court. It then has the same legal effect as if the individual had made the will themselves.

Costs

The general rule is that the costs of a statutory will application are paid from the individual’s estate, provided the application was appropriate and made in good faith.

Our fees are calculated on a time spent basis. We choose to limit our hourly rates to the Guideline Hourly Rates (National Band One), ensuring that our costs remain proportionate and transparent.

We will provide a clear estimate of our fees at the outset and keep you updated throughout the process

How we can help

We provide expert advice and support in relation to all aspects of statutory will applications, including:

  • Preparing and managing applications to the Court of Protection
  • Advising deputies and attorneys on whether a statutory will is appropriate
  • Acting in contested applications and disputes
  • Advising beneficiaries and interested parties

We understand that these applications can be sensitive and complex, often involving difficult family dynamics. Our approach is to provide clear, practical advice while ensuring that the individual’s best interests remain central.

We have prepared over 100 statutory wills on behalf of deputies and attorneys, acting for a wide range of clients including younger individuals with brain injuries and elderly clients with dementia.

Key Contact

Tom Hall

Partner
Tom Hall is the Head of our Court of Protection department and has specialised exclusively in this area since 2012. Tom joined Hugh James in September 2022, having previously been a partner at Thomson Snell & Passmore. The majority of Tom’s clients are brain injury survivors who have received compensation awards. Tom is also often instructed to prepare expert witness statements regarding Court of Protection costs to assist with ongoing personal injury and clinical negligence claims.

Speak to our team

If you require advice about a statutory will or wish to make or respond to an application, our Court of Protection department can provide clear, tailored guidance.

FAQs

Testamentary capacity is the legal ability to make a valid will. A person must be able to understand the nature and effect of making a will, the extent of their assets, and the claims of those who might expect to benefit from their estate.

If a person lacks testamentary capacity, it may be necessary to apply to the Court of Protection for a statutory will.

Not necessarily. A diagnosis of dementia does not automatically mean that a person lacks testamentary capacity.

Some individuals with dementia may still have sufficient capacity to make a valid will, particularly in the earlier stages of the condition. A statutory will is only required where the individual no longer has the capacity to make a will themselves.

Capacity is assessed on a decision-specific basis. In the context of making a will, this usually involves a medical or specialist assessment to determine whether the individual understands the nature and effect of a will, the extent of their estate, and who may have a claim on it.

If there is any uncertainty, a formal capacity assessment should be obtained to confirm whether a statutory will application is required.

Next steps

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