Statutory wills

To make a valid Will, a person must be over the age of 18, have the intention to create a will and must have mental capacity (also known as 'testamentary capacity').

When someone no longer has mental capacity, this means that a medical professional has determined that a person no longer has the ability to:

• make informed decisions for themselves
• understand the consequences of their decisions
• communicate their decision by any means.

Therefore, a person who wishes to create a statutory will may need to obtain medical evidence that someone lacks mental capacity.

If a person who lacks mental capacity requires a will but is unable to consult a professional or create a will themselves, then an application to the Court of Protection may be necessary. There may be several reasons why a statutory will may be necessary, such as:

• the vulnerable person in question has never made a will before
• the vulnerable person has high-value assets
• tax planning purposes
• a property left in the previous will is no longer valid
• the beneficiaries in the 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 further information, read Reasons to make a will.

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 dealt with as a formal application to the Court of Protection.

The contact details for the Court of Protection are:

Court of Protection, PO Box 70185, First Avenue House, 42-49 High Holborn, London, WC1A 9JA, 0300 456 4600

There are a few steps in making an application to the Court of Protection for a statutory will.

Application

You will need to download and fill the following forms to apply to make a statutory will on behalf of someone, or make changes to their existing will:

• application form (COP1)
• witness statement (COP24)
• information form (COP1C)

Along with these forms, you will need to fill in an assessment of capacity form (COP3). This form is important as it provides evidence that the person in question lacks 'mental capacity'.

Supporting information

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

• a copy of the person's current will and any amendments, such as codicils
• a copy of the proposed new will or codicil
• a copy of any deputyship order
• details of any executors
• details of the person's family tree, including details of the name and date of birth of each person
• any copies of any registered Lasting Power of Attorneys
• a schedule detailing all of the person's assets, income and spending
• a statement showing the person's needs (current and future estimates)
• relevant details of any fee-paying accommodation, such as care homes or National Health Service accommodation
• details of any capital gains tax, inheritance tax or income tax which may be chargeable in respect of the proposed new will or codicil
• confirmation that the person is a resident of England and Wales
• an up-to-date report of the person's present medical condition, life expectancy, likelihood or required expenditure and testamentary capacity
• an explanation as to why the applicant considers the proposed statutory will to be in the person's best interests

After the application

The Court of Protection will then send you a letter to confirm that the application has been received and a stamped copy of the application form. You will also receive a 'directions order' from the court which will set out what you should do next. The order might tell you to write to the Official Solicitor to tell them about your application. The Official Solicitor is a person appointed by the court to ensure that vulnerable people who can't make decisions for themselves, have someone to represent them.

The 'directions order' will also state who you must serve your application on. This may include anyone named in an existing will who would be affected by the change, the Official Solicitor and family members who would expect to benefit from any inheritance. You must serve a 'notice that an application form has been issued (COP15)' and an 'acknowledgement of service form (COP5)'. These documents can be served by post, by fax or email or in person.

Generally, the court's permission is required for an application. However, some categories of people are exempt and can apply regardless. The following are exempt:

• the incapacitated person themselves
• the donor or donee of a Lasting Power of Attorney
• a Deputy appointed by the Court
• a Public Guardian
• any person under the last will
• any person who may become entitled to any property under the rules of intestacy (eg a spouse)

An application for a statutory will costs £365 (as of 2021). You may also have to pay £485 if the court decides to hold a hearing, solicitor's fees if a solicitor is appointed and counsel's fees (if applicable).

The main consideration the court will use is whether making a will on behalf of the vulnerable person would be in their 'best interest'. The court will take into account various factors such as:

• the vulnerable person's past and present wishes and feelings, in particular with regards to any relevant written statement made by the vulnerable person when they had capacity
• the beliefs and values that would be likely to influence the vulnerable person's decision if they had capacity
• any other factors that they would be likely to consider if they were able to do so

The court will then tell you if the application has been approved or rejected. If you disagree with the decision you can appeal within 21 days of the decision being made. There are fees to appeal this decision.

If the application is accepted by the court, they will send you a letter with steps on what to do next. These steps will include signing and executing the will.

Two copies of the will should be signed in the applicant's name and in the name of the person the will has been made for. You must also get two 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.

The signed wills must be sent to the Court of Protection to get the court's official seal on them.

The statutory will can be executed and handled in the same way as a normal will (as if the person had made the will themselves). For further information read Executing a will.