Court of Protection
Statutory Wills
When someone can no longer make their own Will, a Statutory Will — authorised by the Court of Protection — may be the answer. Here's when one is needed and how the process works.
Why a Will review matters for Deputies and Attorneys
Part of supporting someone who lacks capacity is thinking ahead — not just about their day-to-day affairs, but about what happens when they pass away. As a Deputy or Attorney, while you cannot make a Will on someone’s behalf, you do have a responsibility to consider their estate planning needs and flag when a Will review may be necessary.
A review may be needed in any of these situations:
- The person has no Will in place
- Their existing Will is out of date or no longer reflects their circumstances
- There have been significant changes to their finances, family, or relationships
Does the person have testamentary capacity?
It’s important to understand that the legal test for making a Will — known as testamentary capacity — is different from the test for managing financial affairs. Someone may lack capacity to manage their property and finances, but still have the capacity to make their own Will.
Has testamentary capacity
They can make their own Will
A will can be made in the normal way, with appropriate professional support. No court involvement needed.
Lacks testamentary capacity
A Statutory Will may be needed
A Deputy or Attorney can apply to the Court of Protection to authorise a Will on their behalf.
What is a Statutory Will?
A Statutory Will is a Will that has been approved by the Court of Protection. The Court’s role is to make every effort to understand what the person would have wanted — and to ensure their voice is properly heard in the process. The Court may appoint the Official Solicitor to represent the individual throughout.
An application for a Statutory Will must include:
01
Details of the person’s known wishes, feelings, and values, as far as they can be established
02
Supporting information from people who know the person well — family members, friends, or carers
03
If an existing Will is being changed, clear reasons explaining why a change is necessary
04
The proposed new Will itself
The process can be lengthy. The time and complexity involved depends on the individual’s circumstances, their estate, and the family dynamic. Where there are disagreements about what the person would have wanted, the process can become more involved.
How Rothley Law can help
Our Court of Protection team advises Deputies, Attorneys, and families on when a Statutory Will may be needed and guides you through the full application process. We have experience supporting families through what can be an emotionally complex as well as legally demanding process — and we’ll make sure the individual’s wishes remain central throughout.
If you think a Statutory Will may be needed, or you're not sure where to start, speak to our team for clear and compassionate advice.
Frequently Asked Questions
What is a Statutory Will?
A Statutory Will is a Will made on behalf of someone who lacks the mental capacity to make their own Will, authorised by the Court of Protection. The Court considers what the person would have wanted and approves a Will that reflects their known wishes, values, and relationships as closely as possible.
When is a Statutory Will needed?
A Statutory Will may be needed when someone lacks testamentary capacity and has no existing Will, when their existing Will is out of date or no longer appropriate given changes in their circumstances, or when there have been significant changes to their finances or family that make a review necessary.
What is testamentary capacity?
Testamentary capacity is the legal ability to make a valid Will. The test is different from the test for managing financial affairs — someone may lack capacity to handle their finances but still be able to make their own Will, and vice versa. A formal assessment is needed to establish which is the case.
Who can apply for a Statutory Will?
A Deputy or Attorney can apply to the Court of Protection for a Statutory Will. The application must set out the person’s known wishes and feelings, supporting evidence from those who know them well, and the proposed Will itself.
Can the Official Solicitor get involved in a Statutory Will application?
Yes. The Court of Protection may appoint the Official Solicitor to represent the person who lacks capacity during the application process, to ensure their voice is fully heard and their interests are independently represented.
How long does a Statutory Will application take?
Timescales vary depending on the complexity of the individual’s circumstances, the size of their estate, and whether there are any disagreements about what they would have wanted. Applications can take several months. Taking legal advice early in the process is strongly recommended.
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