A statutory will is a type of will made on behalf of someone who does not have the mental capacity to make a will for themselves. The process is governed by the Mental Capacity Act 2005, which grants the Court of Protection the power to authorise the making, alteration or revocation of a will on behalf of someone lacking capacity.

A loved one may apply to the Court of Protection in England and Wales with a proposed statutory will on behalf of a person lacking mental capacity and, if it is deemed to reflect the vulnerable person's wishes and meets the other requirements, it may be approved by the court and become the person's legal will.

If you wish to make a proposed will on behalf of someone else, it is important to get the process right. You must provide supporting documents and medical evidence to demonstrate not only that the person lacks capacity to make their own decisions, but that the proposed statutory will you've created reflects the vulnerable person's best interests and present wishes.

When do I need a statutory will?

If a person (often called P in a legal context) has lost their mental capacity due to illness, disability or injury, they are considered to have also lost testamentary capacity. The legal formalities for writing or changing a normal will include the requirement that a person writing their will understands the nature and effect of making a will, the extent of their assets and estate, and the decisions they are making. Without the mental ability to do so, they lack testamentary capacity.

The law also specifies that the person must not have a mental condition or disorder that would prevent them from meeting this requirement, which can be relevant for people with advanced dementia, severe brain injuries or profound learning disabilities.

You might apply for a statutory will on behalf of someone without the testamentary capacity to make their own if you believe that the person's existing will, or lack thereof, does not reflect their wishes. Other common reasons to seek a new will include if the person's assets or estate have changed significantly since they made their current will, or if there have been changes that affect proposed beneficiaries. This is often the case where P suffered following negligence and after a successful claim, they receive a settlement sum. It is then important to ensure that they have an attorney, or deputy, to look after their funds. Making an application for a statutory will often goes hand-in-hand with this process. 

Finally, if P does not have a will, their estate will be distributed according to the UK's intestacy rules unless a statutory will is created on their behalf. This may result in P’s blood relatives receiving their estate, which is not always desirable - particularly where the family are not ones closely involved in P’s day to day life and care. In cases where there are no family members to inherit, the estate passes to the Crown.

Naturally, this gives a person very little control over what will happen to their estate unless they have a will in place, and the intestacy rules very rarely reflect a vulnerable person's best interests or intentions for their estate. A loved one or other relevant person may make a proposed will on P's behalf to avoid this outcome.

Who can make an application for a statutory will?

If P has lost testamentary capacity (meaning that they have been deemed to no longer have the capacity to make a will for themselves), a relevant party may apply for a statutory will on their behalf. There are no specific limits on who can make an application for a statutory will, but you may need strong evidence to secure the court's permission. The application can, and often will, be opposed by other interested parties. As such, it is important to understand your legal position before beginning the process.

The parties that most commonly apply for a statutory will include:

• A vulnerable person’s deputy: if the Court of Protection has already appointed a deputy to manage an individual’s property and financial affairs, that deputy may apply for a statutory will on their behalf.
• An attorney under a Lasting Power of Attorney: where an attorney has authority over P’s property and finances, they may also bring an application.
• Family members and close friends: relatives or others with a close connection can apply, particularly if they believe that without a statutory will, the estate would not be distributed fairly or in line with the person’s likely wishes.
• Professional advisors: solicitors, accountants or others with a professional relationship may make the application after seeking the court’s permission.

Although a range of people can apply, the Court of Protection has the final say on whether the application is valid and whether making or changing the will is in the person’s best interests.

How do I apply for a statutory will?

To secure a statutory will for someone else, you must create a proposed will that meets the same requirements as a legal will - for example, you must propose executors and make informed decisions about what should happen to all of the person's assets. You will apply to the Court of Protection by sending the proposed statutory will, along with medical evidence of the person’s lack of capacity and an explanation of why a statutory will is needed. You will also have to notify all interested parties, such as relatives and any person who would benefit from P’s previous will or intestacy. This is where disputes often arise.

The Court of Protection decides whether or not to grant your application for a statutory will based on a range of evidence. For example, the court will require medical evidence confirming the lack of mental capacity, which can include witness statements and an assessment of capacity form from an independent medical professional. If the person has an existing will, this may need to be included, and the Court of Protection will usually invite those affected by the will (such as beneficiaries or potential beneficiaries) to be involved in the process.

As such, it is vital to work with a solicitor to prepare evidence and help you to make your application as strong as possible and maximise your chances of success. The team at Switalskis can help you consider the legal requirements and the practical aspects of opposing an application, or defend any objection raised. We can also make sure the legal requirements are met to give you the best chance of a positive outcome.

The court will consider what would be in the person’s best interests, looking at factors such as their past wishes, values, and the interests of their family or dependants. Written statements from these parties and any existing wills can be used to establish the person's intentions, and ensure that the statutory will has the same effect.

Once approved, the statutory will is executed and becomes binding in the same way as any other valid will. A statutory will replaces any earlier wills the person may have made when they still had capacity. It determines how their estate will be distributed after death, in line with what the court considers to be in their best interests.

Speak to our wills and probate solicitors

At Switalskis, we have a range of experience representing people in making or altering the wills of loved ones who have lost their testamentary capacity. We can help you to make a straightforward application, write a statutory will and make the process as stress free as possible by providing peace of mind and reassurance that the legal aspects have been taken care of. We can also assist you in raising an objection to an existing application.

To learn more or get started on the application process, contact us today. Call our team on 0800 138 0458 or use the form on our website to get in touch.