What Is a Statutory Will and When Is it Necessary?

If someone lacks the mental capacity to make their own financial or welfare decisions, it is likely that they lack the ability to make a will. If they do not have one already, and you want to avoid the risk of a person lacking mental capacity dying intestate, a statutory will may be necessary. This is the name for a last will and testament made on behalf of someone via the Court of Protection.

When an individual is unable to make informed decisions for themselves, a Lasting Power of Attorney can be appointed. Attorneys can help a vulnerable individual to make decisions relating to their financial and welfare wellbeing, but there are some decisions, such as making a will, that can only be decided by the courts. When a testator (the person making a will) lacks testamentary capacity to make the will themselves, a close friend or family member may be able to do so on their behalf by making a proposed statutory will.

In this guide, the experts at Percy Hughes & Roberts Solicitors explain what a statutory will is, when it is necessary, and how to apply for one on someone else’s behalf. 

What is a statutory will?

A statutory will is made by the Court of Protection on behalf of someone who is unable to do so due to a lack of mental capacity. A statutory will has the same effect for vulnerable people as a standard will does for those who do not lack capacity, but it must be made according to a specific process to verify that it represents the testator's present wishes and feelings.

The Court of Protection is a specialist court that helps those who do not have the capacity to manage their own affairs. It has the power to make decisions for people regarding their health, welfare, finances, and property. The court will consider a multitude of factors and will always have the individual who lacks capacity in their best interests. 

What is testamentary capacity?

In order to legally create a will, an individual needs to have 'testamentary capacity', which means that they have the mental ability to make their own decisions about the arrangements and gifts in their will.

If there is evidence to show that an individual did not have testamentary capacity when they wrote their will, the will may be found invalid and overturned. It is sometimes possible to challenge a will on this basis, but this can result in lengthy court proceedings after the person dies. Instead, it is best to secure medical evidence while the person is alive and make a statutory will application during their lifetime.

When is a statutory will necessary?

If an individual who lacks testamentary capacity requires a new will or a change to an existing will, an application to the Court of Protection for a statutory will will be necessary. There are a few scenarios when a change in the will may be needed, such as if:

• The vulnerable person had not made a will before they lacked capacity
• The proposed beneficiaries in the will have died and there are no arrangements for replacements
• The vulnerable person has high value assets 
• Amendments are needed for Inheritance Tax planning purposes
• The value of certain assets changes

Determining when a statutory will is necessary can be a complicated and sensitive process. Seeking expert legal advice before you apply to the court can make sure you understand whether a statutory will is the right approach and maximise your odds of securing the court's permission.

Can I just make a normal will?

A standard will made by someone who lacks capacity can be challenged by others on the grounds of lacking testamentary capacity. Scenarios like this can occur when family or friends believe that the vulnerable person was coerced into signing something in order for particular beneficiaries to get financial gain.

Testamentary capacity is usually presumed by the courts unless evidence is provided to put it in doubt. The burden of proof then falls onto the individual stating that the vulnerable person did have capacity when the will was written.

Providing evidence for this type of case, for either side, can be complex and often requires in-depth medical reports. However, if the other party can provide the necessary evidence, the document will be overturned. A statutory will application is the only secure way to create or amend a will on someone else's behalf.

What is the statutory will application process?

Applying to the Court of Protection for a statutory will on someone else’s behalf involves a few steps. You will need to prepare the following supporting documents:

• An application form in which you will explain to the courts what you are asking to do and your reasons for doing so
• A witness statement that provides additional evidence to support the application
• An information form including a medical report and a summary of assets
• An assessment of capacity form with evidence that the person in question lacks mental capacity 

After you have completed all of the relevant government forms, you will need to provide further information and evidence. This includes:

• An up-to-date copy of the individual’s existing will, if they have one
• A copy of the new proposed will or codicil
• A copy of any deputyship order
• Copies of any registered Lasting Power of Attorneys
• Details of the person’s assets, income, and spending
• Details of any executors
• The person’s family tree, including names and dates of birth
• An explanation as to why the applicant considers a statutory will to be in the best interests of the vulnerable person

Once you have sent these documents, you will receive a confirmation letter from the Court of Protection to tell you all of the documents have been received. You will also receive a “Directions Order” which will detail your next steps.  

What factors will the Court of Protection consider? 

The Court of Protection is 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 the person when they had capacity may also be relied upon to determine their past and present wishes
• The vulnerable person’s beliefs and values that would likely influence their decision if they had capacity
• The views of the carer of the vulnerable person
• The views of the attorney chosen by the vulnerable person
• The views of the deputy appointed by the Court of Protection

At all times, the Court of Protection will have the vulnerable person’s best interest at heart, and will likely also take into account how the vulnerable person will be remembered after their death.

How can Percy Hughes & Roberts help?

If you are concerned that a loved one lacks the mental capacity to manage their own affairs and want to know more about the processes involved in taking legal responsibility for them, our Court of Protection solicitors can help you. If you believe a loved one needs a statutory will, our solicitors can guide you through your options and next steps. 

At Percy Hughes & Roberts, we can not only advise you on the necessary steps required to take responsibility for someone's affairs, but also on how to create an up-to-date will for them so that all of their affairs are in order should they pass away. 

If you need assistance with the appointment of a deputy, updating a will, creating a​​​​​​​ power of attorney, or simply want general advice, our Wirral wills solicitors have a wealth of experience.