Statutory Will applications – When the court makes a Will for you

Statutory Will Applications are a vital part of ensuring the interests of individuals who lack capacity are protected even after their death. Our Court of Protection & Vulnerable Persons team frequently assist families and deputies with applying to the Court of Protection to make or amend a Will in the best interests of someone who cannot do so themselves.

This article explores the legal framework surrounding Statutory Will applications, when and why they are necessary, and what to expect during the process.

What is a Statutory Will?

A Statutory Will is a Will made on behalf of a person who lacks the mental capacity to create or alter their own Will, as governed by the Mental Capacity Act 2005. Unlike traditional Wills, these are authorised by the Court of Protection and are legally binding once approved by the court.

Legal framework and context

The authority for Statutory Will applications comes under Section 18(1)(i) of the Mental Capacity Act 2005. This allows the Court of Protection to make a Will or alter an existing one for someone who lacks capacity. The application must demonstrate that the proposed Will reflects the person’s best interests. This includes consideration of their past wishes, feelings, values, and beliefs.

When is a Statutory Will necessary?

Situations that commonly require a Statutory Will application include:

• The person has never made a Will and their estate would otherwise pass under intestacy rules.
• Existing Will provisions are outdated or do not reflect current relationships or circumstances.
• Inheritance Tax planning or financial needs of dependents warrant changes.
• A pay out from a Criminal Injuries Compensation Authority claim.

Who can apply for a Statutory Will?

The application can be made by:

• A deputy appointed by the Court of Protection.
• A close family member or friend.
• A solicitor acting on behalf of the person lacking capacity.

All applications must have the permission of the court.

Key steps in making a Statutory Will application

1. Assess capacity: Medical evidence must confirm that the person lacks capacity to make a Will.
2. Prepare a draft Will: A proposed Will is drafted by a solicitor, considering what the person would likely want.
3. Submit to Court of Protection: An application is made to the court, including a full statement of reasons and supporting documents.
4. Notification: Interested parties must be notified, including relatives who would inherit under intestacy or any previous Wills.
5. Hearing or paper decision: The court may decide based on the papers or hold a hearing if objections arise.
6. Official solicitor: Represents vulnerable people in legal proceedings and make decisions about the court case on their behalf. The official solicitor provides impartial best interest opinions for the judge to review.

What does the court consider?

The court focuses on the person’s best interests, which includes:

• Their past and present wishes.
• The beliefs and values they held.
• The views of family and those involved in their care.

External guidance from the UK Government’s website provides additional clarity on how these decisions are made and the documents required.

Expert insights

• Solicitor-led applications: Improve chances of approval through well-prepared documentation and strong evidence.
• Early capacity assessment: Crucial to avoid disputes or delays.
• Engaging with all interested parties: Prevents objections and encourages a consensus-based outcome.

Our specialist Court of Protection & Vulnerable Persons team are dedicated to supporting and protecting the interests of those who no longer have the mental capacity to make their own decisions. Whether this is through illness, disability, or injury, we work with a range of vulnerable clients and their families to overcome the often complex legal issues that arise in these circumstances. We can help you at every step with friendly, empathetic, and expert legal support.

Contact us for more information.

Benefits and challenges

• Benefits:
  • Ensures fair and thoughtful distribution of estate.
  • Reduces potential for disputes after death.
  • May provide tax advantages or financial benefits to dependents.
• Challenges:
  • Can be time-consuming and expensive.
  • Requires detailed evidence and justification.
  • Emotional strain on family members.

Statutory Will Applications – FAQs

What is a Statutory Will?

A Statutory Will is a legally binding will approved by the Court of Protection for someone who lacks the capacity to create or change their own Will.

Who decides what goes in a Statutory Will?

The Court of Protection or a Official Solicitor decides based on what is in the best interests of the person, considering their past wishes, values, and relationships.

How long does the process take?

Statutory Will applications typically take several months, depending on the complexity of the case and whether a court hearing is required.

Can a Statutory Will be contested?

Yes, interested parties can object to the proposed Will during the application process, which may lead to a court hearing.

Is legal advice necessary?

While not mandatory, legal advice is strongly recommended to ensure the application is properly prepared and more likely to succeed.

This article was produced on the 17th December 2025 for information purposes only and should not be construed or relied upon as specific legal advice.