If someone no longer has the mental capacity to make their own Will, a Statutory Will can be made on their behalf under the Mental Capacity Act 2005.
The main difference between a Will that you would make for yourself and a Statutory Will is that a Statutory Will is approved by the Court of Protection. This can help to prevent situations where the validity of the Will is challenged, usually by beneficiaries.
Applying for a Statutory Will can be a long and confusing process. Our Court of Protection Solicitors can help you break it down into achievable steps. Get in touch to discuss how we can help.
We're rated‘Excellent’For some people, even if they’re unable to create a Will, the Rules of Intestacy will be enough to carry out their wishes automatically so there may be no need to apply for a Statutory Will.
But this won’t be the case for everyone. For example, if someone without mental capacity is in a relationship but not married, applying for a Statutory Will is the only way to make sure their partner is recognised as a beneficiary.
There are some circumstances where it will be more likely that the Court of Protection authorises a Statutory Will, these include:
If someone has dementia but is still able to instruct a Wills and Trusts Solicitor to write their Will, a Statutory Will may not be needed. But if a professional advises they don’t have the mental capacity to make decisions with an understanding of the consequences, a Statutory Will could be necessary.
The Court of Protection makes decisions for people who, for various reasons, are unable to make decisions for themselves. In other words, they ‘lack mental capacity’. These decisions relate to financial and property affairs or health and welfare matters.
If you’ve been awarded personal injury compensation or received an insurance policy payout, you might want to consider putting the money into a Personal Injury Trust for protection. Otherwise, it could affect your eligibility for means-tested benefits, such as Universal Credit and Housing Benefit.
A Personal Injury Trust can ensure that a person who receives a large personal injury compensation settlement remains eligible for any state benefits they’re claiming.
The rules on who can apply for a Statutory Will are quite strict. Usually, this will either be an Attorney or a Deputy.
Often, the person who’s lost capacity to write their Will already has a Lasting Power of Attorney in place. But if not, the Court will appoint a Deputy. This is usually a family member or friend who will act on behalf of a vulnerable person.
If a Solicitor or Medical Professional has advised that you should start the application process for a Statutory Will, you’ll need to apply to the Court of Protection.
This can be a complicated process and we’d recommend using the services of an experienced Solicitor to help you. They’ll be aware of the forms and evidence needed for a successful application and support you in submitting these.
The general rule is that the person who lacks capacity will pay for the costs of the application form from their estate. This will include any fee for a capacity assessment, the Court fee for the application, Solicitor’s costs and any other legal fees.
The process of getting a Statutory Will usually takes up to six months, but this will depend on the Court’s workload at the time you apply and whether there are any challenges to your application.
In certain situations, the process can be made quicker if you can demonstrate that it is urgent because someone’s death is imminent.
If you believe your application for a Statutory Will has been unfairly rejected, you can ask for the decision to be reviewed within 21 days. This will bring a further expense of £234 but you could be entitled to financial support if you’re earning a lower income.
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