What are Statutory Wills and when are they necessary?

Wills are made by individuals every day to set out their wishes for their affairs and assets in the event of their death.  We are all familiar with the meaning of a will, and the common movie trope of a family crowding into a lawyer's office for a controversial 'will reading' (that doesn't happen, by the way!).But what happens when a person lacks mental capacity to make a will in the first place? Many of our clients are in this situation due to a variety of circumstances - being born with a disability, being the victim of an accident, or sadly being overcome with dementia, to name a few.Mental capacity is not black and white, and most individuals do not lack mental capacity in respect of every single decision. This means that someone might have capacity to make decisions about their weekly food shop, but not to understand a high-value portfolio of investments.Mental capacity is a broad spectrum, and someone who has a certain diagnosis cannot automatically be assumed to lack capacity to make their own will (which is known as 'testamentary capacity').However, if it is determined that an individual lacks testamentary capacity, where do they stand?In practical terms, there are two options:

  1. Leave the situation as it is. This means that if the individual already has made a valid will earlier in life (prior to losing capacity) that will remain in place.If the individual has never made a will, the intestacy rules will apply. This means that the individual's next of kin will inherit in a specific order; or
  2. Apply to the Court of Protection to enter into a Statutory Will on the individual's behalf.

A Statutory Will is therefore a will that is made and ratified by the Court of Protection on behalf of an individual who lacks capacity. Once the will is made it is considered as legally binding as a regular will.Applications for Statutory Wills are complex and often costly. For that reason, they must only be made if they are absolutely necessary, and if it can be demonstrated that it is in the individual's best interests. This can be for a number of reasons including:

  • The existing will or intestacy position does not reflect (or no longer reflects) what the individual may have wanted;
  • There has been a significant change in circumstances (for instance original beneficiaries no longer alive, assets already gifted away);
  • The individual's estate has either reduced or increased greatly in value, meaning new provisions need to be made or existing provisions amended;
  • Tax planning purposes (if this can be demonstrated to be in the individual's best interests rather than the interests of their beneficiaries).

What will the Court of Protection take into account?

When considering a Statutory Will application, the court will try to encourage the individual (who they refer to as 'P') to participate wherever possible, and will look at the factors listed in section 4 of the Mental Capacity Act 2005, such as:

  • P's past and present wishes and feelings (and, in particular, any relevant written statement made by P when they had capacity).
  • The beliefs and values that would be likely to influence P's decision if they had capacity.
  • The other factors that P would be likely to consider if they were able to do so.

In addition to the above factors, the court is also likely to take into account the views of those close to P (such as family, close friends, carers) and, following the case of Re P [2009], they may also consider how P would be remembered after their death - for instance, would they want to be remembered as having done the 'right thing'?Statutory Will applications are complex, and the decision of whether to make an application is one to be considered carefully on a case-by-case basis. If you would like further advice, or assistance regarding an application, please contact our specialist Court of Protection team who would be happy to assist.


The content of this page is a summary of the law in force at the date of publication and is not exhaustive, nor does it contain definitive advice. Specialist legal advice should be sought in relation to any queries that may arise.