What is a Statutory Will?

A Statutory Will is a Will authorised by the Court of Protection for an individual who lacks the mental capacity to make one themselves. Testamentary capacity requires a person to understand the nature and effect of a Will, the extent of their assets, the people who might reasonably expect to benefit, and to make decisions free from undue influence. Without this understanding, any Will they create would be invalid.

If a person dies without a valid Will, the intestacy rules determine how their estate is distributed. This may not align with their wishes or best interests. An existing Will may also be outdated or inappropriate, making it necessary to seek a Statutory Will.

When is a Statutory Will necessary?

A Statutory Will may be required in situations such as:

• Changes in relationships or circumstances—for example, the death of a beneficiary, divorce, bankruptcy, increased care needs, or a beneficiary having already received substantial lifetime gifts.
• The need to make specific provisions, such as granting a beneficiary the right to reside in a property.
• Inheritance Tax planning, where an existing Will or intestacy may lead to an unnecessary tax burden.

What is the process?

A Statutory Will application may be made by a Deputy, Attorney, family member, or a previous or potential beneficiary. As the process is detailed and time‑consuming, applicants often instruct a solicitor. The process generally involves:

• Completing the required forms, including a witness statement and capacity assessment.
• Submitting the application to the Court of Protection.
• Notifying and consulting relevant family members or interested parties.
• Attending a hearing, if the Court considers one necessary.
• If approved, the Will is signed and sealed by the Court of Protection.

What factors will the Court of Protection consider?

The Court of Protection are required to apply an objective test to assess whether any proposed statutory Will is in the vulnerable person’s best interests.  The court will try to encourage the vulnerable person to participate in the process where possible.

The Court will consider:

• The vulnerable person’s wishes both past and present. Any written statements made by them prior to losing capacity
• The vulnerable person’s beliefs and values that would likely influence their decision if they had capacity
• The views of their carer, chosen attorney and/or appointed Deputy.

Why choose Keelys?

The process can be complex, but the Keelys Private Client team can provide clear guidance and support throughout.

Please call 01543 420 000 and ask for the Private Client Team, or email Alison Woodbridge awoodbridge@keelys.co.uk