Statutory Wills — what are they, when do you need one and the application process explained

If someone is unable to make or change their own Will due to a lack of mental capacity, a Statutory Will may be needed to ensure that their estate is managed and distributed according to their best interests and the needs of their dependents.  

Here, Sarah Murphy — a Partner in our estate planning team — explains more about the purpose of a Statutory Will and the application process.

What is a Statutory Will?

A Statutory Will is a legal document created on behalf of someone who lacks the mental capacity to make or change their own will. 

This situation typically arises due to conditions such as dementia, severe brain injury or other illnesses that impair cognitive function. 

What happens if you don’t have a Statutory Will?

If a person who lacks mental capacity doesn’t have a Statutory Will, when they die the distribution of their assets might not align with their wishes or the needs of their dependents. 

So a Statutory Will is essentially a legal tool that considers a person’s relationships and obligations, even if they can’t express these themselves.

What does the application process involve? 

To create a Statutory Will, an application must be submitted to the Court of Protection. This requires detailed information about the person's assets, proposed beneficiaries and the reasons for the updated Will. 

The Court decides whether a person lacks the capacity to make a Will and whether the terms of the proposed Will reflect the best interests of the person concerned. 

After reviewing the application, a hearing may be held to gather more information before the Court makes its decision. The Official Solicitor may represent the incapacitated person if a suitable litigation friend — someone who’s able to make legal decisions on behalf of a person who lacks mental capacity — can’t be appointed. 

If approved, the Will is signed, witnessed and sealed by the court, making it legally binding. 

Statutory Wills play a vital role in estate planning for those who can’t manage their affairs. By understanding the importance and process of Statutory Wills, families can better prepare for the future and protect the interests of their vulnerable relatives.  

Talk to us 

Applying for a Statutory Will can be a complex court process, so it’s essential to consult with legal experts who can help you to navigate the application procedure effectively. 

If you have any questions about Statutory Wills or the Court of Protection, talk to us by giving us a call on 0333 004 4488, sending us an email at privateclient@brabners.com or completing our contact form below.