Statutory Will

Elderly couple

When someone who has not made a Will loses mental capacity, it is possible to apply to the Court to make a Statutory Will. This is often required where the person’s estate would otherwise be distributed to someone they would not have wanted it to go to on their death (on the rules of intestacy).

Of note, the fact that someone has a Lasting Power of Attorney, Enduring Power of Attorney or Deputyship Order for the person who has lost capacity does not entitle them to make a Statutory Will on their behalf. A separate application must be made to the Court.

Do you need a Statutory Will?

The fact that someone has dementia or struggles with certain aspects of their life does not precluded them from making a Will. To be able to make a Will, a person must:

  • Be able to understand that they are making a Will, and the effect of making that Will.
  • Know the nature and value of their estate.
  • Understand the consequences of excluding/including certain people in their Will.
  • Not be suffering from a disorder of the mind that might influence their views.

These principles were set out in Banks v Goodfellow 1870 and although the law has developed since then, the principles are the same. Therefore, the fact that a person struggles with certain aspects of their life, such as managing a bank account or paying bills, does not mean they cannot make a Will. Every case will be different.

It is certainly worth considering carefully whether the person concerned has the mental capacity to make a Will because this will be far simpler and cheaper than going through the Statutory Will process. Given the rising number of Will challenges, it would be advisable to seek a medical professional’s opinion and to have this recorded in writing.

Who would inherit?

It is worth considering carefully who would inherit if the person died without a Will. The Government’s intestacy wizard can help you answer this question.

The reason that this is important is that you will need to provide a family tree with your application. The Court will consider a range of matters when deciding whether to approve a Statutory Will application – one of which will be the potential beneficiaries who might lose out.

The Statutory Will process

The process for making a Will starts with an application to the Court which must be accompanied by a range of documentation. This package of information includes:

  • Application form (COP1)
  • Witness statement (COP24)
  • Information form (COP1C)
  • A copy of any Deputyship Order, Lasting Power of Attorney or registered Enduring Power of Attorney
  • A copy of the proposed draft Will
  • Consents to act by proposed Executors
  • Family tree
  • Schedule of assets with valuations
  • Schedule of income and expenditure
  • Tax details – for example, any inheritance tax implications
  • An explanation of why the person might be expected to provide for people named in the draft Will.

The above is intended to be a general overview of the documents required rather than an exhaustive list. Other information may be required depending on the facts of the case.

Acting in the person’s best interests

The Statutory Will must be made in the person’s best interests. Therefore, you need to consider:

  • What the person would do if they were able to make a Will themselves
  • The person’s beliefs and personal values
  • How the person has acted and made decisions for themselves in the past

Fees to make a Statutory Will

The Court charges £400 for an application to make a Statutory Will.

Additionally, you may have to pay:

  • £500 if the court decides to hold a hearing (including telephone hearings)
  • Solicitor’s fees if a solicitor is appointed by the Official Solicitor to act as the person’s litigation friend
  • Counsel’s fees (if there are any)

You may be able to claim back any fees you pay from the estate of the person you’re applying for. You may not have to pay an application or hearing fee, depending on the circumstances of the person you’re applying for, eg they have low (or no) income, or they are on certain types of benefit.