Statutory Will

Statutory Will
Statutory Will
Full Overview Of Statutory Will

A statutory will is a will created by the court on behalf of an individual who lacks the capacity to make one themselves. This legal instrument ensures that the individual’s estate is managed and distributed according to their best interests, reflecting what they might have chosen had they been able to make a will.

At DLS Solicitors, we understand the complexities and sensitivities involved in applying for and drafting a statutory will. This comprehensive overview explains the concept, legal framework, practical applications, and considerations involved in statutory wills, providing valuable insights for solicitors, family members, and carers.

What is a Statutory Will?

A statutory will is a court-authorised will made for a person who lacks testamentary capacity due to conditions such as dementia, brain injury, or severe learning disabilities. It aims to ensure that the individual’s estate is distributed in a manner that aligns with their likely wishes and best interests. This process safeguards the individual’s assets and provides clarity for their beneficiaries.

Legal Framework

Mental Capacity Act 2005

The Mental Capacity Act 2005 (MCA) is England and Wales’s primary legislation governing statutory wills. The Act sets out the principles for assessing mental capacity and provides a framework for making decisions for individuals lacking capacity. Under the MCA, the Court of Protection has the authority to make statutory wills for individuals who cannot make their own.

Court of Protection

The Court of Protection is a specialist court responsible for making financial and welfare decisions for individuals lacking capacity. This includes authorising statutory wills. The court’s role is to ensure that decisions are in the best interests of the person lacking capacity, considering their past and present wishes, feelings, values, and beliefs.

Practical Applications

When is a Statutory Will Needed?

  1. Incapacity without a Will: When an individual lacks capacity and has not made a valid will, a statutory will ensures that their estate is managed and distributed appropriately.
  2. Outdated Will: If the individual’s existing will is outdated or no longer reflects their current circumstances or wishes, a statutory will can update their estate planning.
  3. Disputes Among Beneficiaries: A statutory will provides a clear, court-sanctioned resolution in cases where there is a potential for disputes among beneficiaries or where the intestacy rules would result in an unfair distribution.

Benefits of Statutory Wills

  1. Protection of Interests: This ensures the individual’s estate is protected and managed according to their best interests.
  2. Prevention of Disputes: Reduces the likelihood of disputes among family members and beneficiaries by providing a clear and legally binding will.
  3. Reflecting Likely Wishes: Attempts to reflect what the individual would have wanted based on their past and present wishes, feelings, and values.

Steps to Obtain a Statutory Will

Assessing Capacity

The first step in obtaining a statutory will is to assess the individual’s mental capacity. This assessment is typically conducted by a qualified medical professional who reports the individual’s capacity to make decisions about their estate. The assessment must confirm that the individual lacks the capacity to make a will.

Application to the Court of Protection

Once incapacity is established, an application is made to the Court of Protection. The application should include:

Notification of Interested Parties

Interested parties, including family members and potential beneficiaries, must be notified of the application. This ensures that they have the opportunity to provide input or raise objections. The court considers these views when making its decision.

Court Hearing

The Court of Protection will hold a hearing to consider the application. During the hearing, the court will review the evidence, including medical reports, the proposed terms of the will, and the views of interested parties. The court’s primary concern is whether the proposed will is in the individual’s best interests.

Court Decision and Issuance of Will

If the court approves the application, it will issue a statutory will. This document is legally binding and replaces any previous wills made by the individual. The statutory will reflects the court’s determination of what is in the best interests of the person lacking capacity.

Considerations for Solicitors

Duty to Act in Best Interests

Solicitors involved in the application for a statutory will have a duty to act in the best interests of the individual lacking capacity. This includes ensuring that the proposed will reflects the individual’s likely wishes and is fair to all potential beneficiaries.

Thorough Documentation

Accurate and thorough documentation is crucial in the application process. This includes detailed information about the individual’s assets, family circumstances, and previous wills. Proper documentation helps the court make an informed decision and supports the solicitor’s case.

Sensitivity and Communication

Solicitors must handle statutory will applications sensitively, especially when dealing with family members and potential beneficiaries. Clear and compassionate communication can help manage expectations and reduce the likelihood of disputes.

Case Studies

Statutory Will for a Dementia Patient

An elderly woman with advanced dementia had a will made 20 years ago, leaving her estate to her now deceased husband and children. One child predeceased her, and her other children are estranged. Her care home fees are substantial, and her current will does not address these realities. A statutory will application is made to ensure her estate is used to cover her care home fees and distribute the remainder to her grandchildren, reflecting her likely wishes had she updated her will.

Intestate Estate and Disputed Beneficiaries

A middle-aged man suffers a severe brain injury, rendering him incapable of making a will. He has no children, and his parents are deceased. Under intestacy rules, his estate would go to his estranged siblings, which he had verbally expressed he did not want. A statutory will is applied for, proposing that his estate be divided among his long-term partner and a charity he supported, reflecting his likely wishes and avoiding potential family disputes.

Legal Considerations

Compliance with Legal Standards

The statutory will must comply with the legal standards set out in the Mental Capacity Act 2005 and other relevant legislation. This includes ensuring that the will is made in the individual’s best interests and reflects their likely wishes.

Possible Challenges

Statutory wills can be challenged by interested parties who disagree with the proposed distribution. Solicitors must be prepared to address these challenges by providing clear evidence and arguments supporting the proposed will.

Comprehending the Court’s Role

The Court of Protection’s role is to act in the best interests of the person lacking capacity. Solicitors must ensure that their applications align with this principle, providing comprehensive evidence and arguments that support the individual’s best interests.

Best Practices for Solicitors

Comprehensive Evidence Gathering

Gathering comprehensive evidence is essential for a successful statutory will application. This includes medical reports, financial statements, and family and friends’ testimonies about the individual’s likely wishes and values.

Clear and Detailed Applications

Applications to the Court of Protection must be clear, detailed, and well-structured. Solicitors should ensure that all necessary information is included and that the application presents a compelling case for the proposed will.

Effective Communication with Interested Parties

Effective communication with all interested parties can help manage expectations and reduce the likelihood of disputes. Solicitors should explain the process, address concerns, and ensure that all parties understand the rationale behind the proposed will.


Statutory wills are vital for ensuring that the estates of individuals lacking capacity are managed and distributed in their best interests. Understanding the legal framework, practical applications, and considerations involved in statutory wills is crucial for solicitors, family members, and carers.

At DLS Solicitors, we are committed to providing expert guidance and support in all aspects of statutory wills. Our experienced team can help you navigate the complexities of applying for and drafting statutory wills, ensuring that the process is handled professionally and carefully.

If you have any questions or need assistance with statutory wills or any other estate planning and administration aspect, please do not hesitate to contact us. We are dedicated to helping you achieve peace of mind and ensuring that your legal affairs are managed effectively and in accordance with the best interests of your loved ones.

Statutory Will FAQ'S

A statutory will is a will created by the Court of Protection on behalf of an individual who lacks the mental capacity to make their own will. It ensures that the person’s estate is managed and distributed according to their best interests.

A statutory will can be requested by anyone who has an interest in the welfare of the person who lacks capacity, such as family members, friends, solicitors, or carers. The application is made to the Court of Protection.

The Court of Protection assesses applications for statutory wills, ensuring that the will reflects the best interests of the incapacitated person. The court considers evidence about the person’s wishes, feelings, and previous testamentary intentions.

Mental capacity is determined by medical professionals who assess whether the person can understand, retain, and weigh information relevant to making a will. The court requires a formal assessment and supporting medical evidence.

The application must include details about the incapacitated person’s financial situation, family circumstances, any existing wills or codicils, a draft of the proposed will, and medical evidence of their lack of capacity.

The process can take several months, depending on the complexity of the case and the court’s schedule. It involves submitting the application, gathering evidence, and potentially attending a court hearing.

Costs include court fees, which are currently £371 for the application, legal fees for solicitors, and fees for obtaining medical evidence. The total cost can vary significantly, depending on the complexity of the case.

Yes, interested parties can contest a statutory will by presenting their objections to the Court of Protection. The court will consider these objections and make a decision based on the best interests of the incapacitated person.

If the person regains mental capacity, they can revoke the statutory will and create a new will according to their own wishes, provided they have the mental capacity to do so.

Yes, a statutory will can be amended or updated if there are significant changes in circumstances. This requires a new application to the Court of Protection, along with updated evidence and a proposed new will.


This site contains general legal information but does not constitute professional legal advice for your particular situation. Persuing this glossary does not create an attorney-client or legal adviser relationship. If you have specific questions, please consult a qualified attorney licensed in your jurisdiction.

This glossary post was last updated: 11th July 2024.

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Our team of professionals are based in Alderley Edge, Cheshire. We offer clear, specialist legal advice in all matters relating to Family Law, Wills, Trusts, Probate, Lasting Power of Attorney and Court of Protection.

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