Statutory wills

What is a statutory will?

A statutory will is a last will and testament made by the courts on behalf of someone who has lost the ability to make informed decisions for themselves. This is known as having lost ‘mental capacity’ or 'testamentary capacity'.

To make a valid Will, a person must be over 18, have the intention to create a will, and have mental capacity. 

When someone is held to not have mental capacity, this means that a medical professional has determined that a person does not have the ability to:

• make informed decisions for themselves

• understand the consequences of their decisions

• communicate their decision by any means

Note that someone who has lost the mental capacity to make financial decisions for themselves may still have the capacity to make a will.

As a result, before a statutory will can be made, medical evidence must be obtained showing that the person for whom the statutory will is to be made lacks mental capacity. For more information on mental capacity, read Mental capacity and medical consent.

When should a statutory will be made?

A statutory will should be made if a person who lacks mental capacity requires a new will or requires changes to be made to an existing will. There are several reasons why a statutory will may be necessary, such as:

• the person in question has never made a will before

• the person has high-value assets

• tax planning purposes

• a property or other gift left in a previous will is no longer valid

• the beneficiaries under a previous will have died and there are no provisions for replacements

• a current or previous will makes inadequate provisions for relatives who have been caring for the person

For more information, read Reasons to make a will.

Because the person lacks mental capacity, they are unable to consult a professional or create a will themselves. Therefore, an application to the Court of Protection must be made.

What is the Court of Protection?

The Court of Protection is a specialist court set up to protect the interests of those who can't make certain financial or welfare decisions because they lack mental capacity. The court has the authority to make decisions, such as making a will on behalf of someone who lacks mental capacity. In Scotland, the Court of Protection is called the Office of the Public Guardian.

All applications for statutory wills (including those made in Scotland) must be made to the Court of Protection.

What should I consider when making a statutory will?

Any decision you make on behalf of someone else must be in their best interests. You should consider:

• what the person would do if they were able to make a will themselves

• the person’s beliefs and personal values

• how the person acted and made decisions for themselves in the past

Who can apply for a statutory will?

Generally, the court's permission is required before an application can be made. Anyone who has the court’s permission can apply for a statutory will. However, some categories of people are exempt from the need for permission and can apply for a statutory will without needing the court’s permission before doing so. These include:

• the incapacitated person

• anyone with parental responsibility for the incapacitated person, if they are under the age of 18

• a court-appointed deputy

• any person named in an existing order of the court to which this application relates (eg any person named under an existing statutory will)

How do I apply for a statutory will?

The steps for applying to the Court of Protection for a statutory will include:

Making an application

You will need to download and fill in the following forms to apply for a statutory will:

• Application form (COP1)

• Witness statement (COP24)

• Information form (COP1C)

• Assessment of capacity form (COP3) -  the incapacitated person’s doctor or other medical professional needs to fill in the relevant parts to provide evidence that the person in question lacks mental capacity

Include supporting information

Once the main documents have been completed, you will need to include supporting documents and information relating to the application. Examples of the information that needs to be included, where appropriate, are:

• a copy of the incapacitated person's current will and any codicils (ie amendments to the will)

• a copy of the proposed new will or codicil

• a copy of any deputyship order

• details of any executors (ie people who carry out the administrative duties and tasks required under the will)

• details of the person's family tree (including details of the name and date of birth of each person)

• the reasons why the incapacitated person might be expected to provide for beneficiaries (ie people named in their will)

• copies of any registered LPAs (or enduring powers of attorney, if these were made before October 2007)

• details of the incapacitated person's estate (ie all their belongings, including money and property), assets, income and spending

• the incapacitated person’s address and details about where they’re living (eg with a relative, in a care home or in a hospital)

• details of any inheritance tax payable in the event of the incapacitated person’s death

Sending the application

Once you have completed all forms, you should send them, along with any supporting documents and payments, to the Court of Protection. The postal address is:

Court of Protection

PO Box 70185

First Avenue House

42-49 High Holborn

London

WC1A 9JA

What are the fees for applying for a statutory will?

An application for a statutory will costs £408 (as of 2024). Depending on the circumstances, you may have to pay additional fees, including:

• £494 if the court decides to hold a hearing

• applicable solicitor's fees if a solicitor is appointed by the Court of Protection

• counsel's fees if barristers are appointed

For more information on fees, including on exemptions and refunds, see the government’s guidance on fees when making a statutory will.

What happens after an application for a statutory will is made?

The Court of Protection will send you a letter to confirm that the application has been received. 

You will also receive a stamped copy of the application form and a 'directions order', setting out what you should do next. For example, the order might tell you to write to the Official Solicitor to inform them about your application. The Official Solicitor ensures that vulnerable people who can't make decisions for themselves have someone to represent them in court.

The directions order will also state who you must serve the application on (ie who you must tell about the application). This may include: 

• the incapacitated person themselves

• anyone named in an existing will who would be affected by the change

• the Official Solicitor

• family members who would expect to inherit under the rules of intestacy for England and Wales and/or Scotland if the incapacitated person dies without a will

• any other person named on the application

To give notice, serve the following documents within 14 days of the application being issued:

• notice that an application form has been issued (COP15), and

• acknowledgement of service form (COP5)

These documents can be served by post, by fax, email or in person.

What will the court take into account when deciding whether to grant a statutory will?

The main consideration the Court of Protection will use is whether making a will on behalf of the incapacitated person is what would be in their best interests. The Court of Protection will take into account various factors, such as:

• the incapacitated person's past and present wishes and feelings, in particular with regard to any relevant written statement made by them when they had capacity

• the beliefs and values that would be likely to influence the incapacitated person's decision if they had capacity

• any other factors that they would be likely to consider if they were able to do so

What will I be told about the application?

The Court of Protection will tell you if the application has been approved or rejected, if you need to provide further information (eg medical reports), or whether a court hearing will be held. 

A hearing will typically be held if you have yet to be able to reach a decision with the people you served notice to. A solicitor can represent you at a hearing. Note that a fee will be payable after a final decision is made. 

If you disagree with a decision made without a hearing, you can appeal within 21 days of the decision being made, using Form COP35: Appellant's notice. You will have to pay applicable fees when appealing.

For more information, see the government’s guidance on getting a decision when applying for a statutory will.

Executing the statutory will

If the Court of Protection accepts your application, it will send you a letter outlining the next steps. These will include signing and executing the statutory will.

To sign and execute the statutory will, you must:

• make 2 copies of the will

• sign and date both copies in your name (ie the name of the person who applied for the statutory will) and in the name of the person for whom the will has been made

• get 2 witnesses to sign both copies. The witnesses must at least be 18, must be with you when you sign the will and must sign the will straight after you

Both signed copies of the statutory will must then be sent to the Court of Protection. The copies will be given the Court’s official seal before being returned to you.

The statutory will can then be executed and handled in the same way as an ordinary will (ie as if the person had made the will themselves) in the event the incapacitated person dies. For more information, read Executing a will and Administering a will.

If you have any questions about statutory wills, do not hesitate to Ask a lawyer.