Statutory Wills

A Statutory Will is the name given to a Will that the Court of Protection can put in place for a person who’s lost the capacity to make a Will themselves. One may also be required if the person has a Will but it is out of date or there’s been a change in their circumstances.

In each case, an application for a statutory Will to be put in place must be made to the Court of Protection.

Who can apply for a Statutory Will?

An application is normally made by the person authorised to act for the person lacking mental capacity. This is often a Court of Protection Deputy or someone with Power of Attorney.

What’s involved in making a Statutory Will?

Applying for a Statutory Will can be a complicated and time consuming. This is why people usually appoint an experienced Court of Protection solicitor to guide them through the process.

A representative of the person lacking capacity will need to make an application through the Court of Protection. This involves completing a number of forms and may involve a hearing in the court.

Among other requirements, a copy of the person’s existing Will, a draft of the proposed Will, details of their family, assets and income, as well as medical evidence of their incapacity has to be provided to the court, together with any other evidence the court requires.

The Official Solicitor will generally be appointed to represent the person’s interests. Anyone who would be potentially affected by the application (perhaps a beneficiary who would lose out, for example) will be a party to the court proceedings.

The statutory Will application process:

  1. The Attorney, Deputy or solicitor will need to complete a number of forms, including a witness statement and assessment of capacity form;
  2. The application is sent to the Court of Protection;
  3. Family members or interested parties will be informed and consulted about the contents of the Will;
  4. There may be a hearing, if the Court of Protection decide that one is required;
  5. If the application is approved the Will is signed and sealed by the Court of Protection.
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