Statutory Wills: Everything You Need To Know

A Will is invaluable for anyone with any assets. However, some people lack the mental capacity to create a Will, making the process of leaving belongings to their loved ones more difficult.

If a person requires a Will but cannot create one themselves, several steps can be taken to prepare a Statutory Will.

When To Apply

Testamentary capacity is a complex topic, and those who retain the capacity to make decisions in other parts of their lives may not understand enough to create a Will.

If an individual cannot draw up a Will and does not already have one in place, applications can be made to the Court of Protection for a family member or loved one, such as next of kin, to create a Statutory Will on their behalf. However, a Statutory Will can only be created when the person in question lacks capacity due to a severe brain injury, dementia, or being born with a disability, for example.

Upon receiving the application, the Court of Protection will assess it, reviewing factors such as the individual’s present wishes and feelings, what would influence their decision if they had capacity, and various other elements that the individual may consider. The Court will also consider the views of family and friends.

The capacity of the person in question will also be assessed, likely by a medical professional. This assessment examines whether the individual knows what a Will is, if they are aware of their assets, and which beneficiaries they wish to appoint.

Statutory Wills

As touched on above, you may consider creating a Statutory Will for someone if they do not have a Will already in place. However, if they pass away without a Will, intestacy rules will apply. Intestacy rules differ depending on the individual’s marital status and may exclude certain people from inheriting any assets.

For example, if an individual passes away without a Will and has two children but no partner, their assets will be divided equally between the children. However, if married partners are separated or estranged but not legally divorced, the partner would inherit the first £270,000 and half of anything over that amount. This can lead to an extensive and expensive probate dispute, which can delay the settlement of the Estate extensively.

A Statutory Will may be appropriate if the individual who lacks capacity has relatives or relations they are close to but would not inherit upon their death. A Statutory Will may also be considered if the Will is severely out of date, if all beneficiaries have already passed away, for tax purposes, or if the individual no longer owns a property listed in the original Will.

How To Apply

Applying for a Statutory Will can be a complicated process. First, a representative of the person who lacks capacity will need to make an application through the Court of Protection, and a number of forms and Court hearings will need to be completed. Here, the proposed Will and details of the family, assets, and income will need to be presented.

After applying, if there are no objections or contests, a Statutory Will may be created in around four to six months. In extreme cases, urgent applications that have a quicker turnaround can also be made.

Statutory Wills can also be expensive. A Court fee of £371 is payable, and additional costs will be added for medical evidence. You may also have to pay £494 if the Court holds a hearing, which includes telephone hearings, alongside solicitor and counsel fees. If the person you are applying for has no or a low income, you may not have to pay an application or hearing fee.

Upon applying on behalf of someone, you must tell all people named within fourteen days. Those named may include:

  • Anyone named in the Will who will be affected financially, such as those who are not included in the new Will.
  • Anyone who would benefit if the person passed away without a Will, such as children or spouses.
  • The solicitor.
  • Anyone else named on the application.

If you are unhappy with any of the decisions made, you can appeal. However, you must do so within twenty-one days. If you choose to appeal, you will be required to pay a fee of £234. If you do not want to appeal and are happy with the Will, you may sign the Will as normal and execute it as usual when the time comes.


Statutory Wills can be confusing and expensive. However, they can be essential for tax purposes and ensure that all those who should benefit do. Having a Will in place is crucial for many people and families, and a Statutory Will can have many benefits and save money in taxes in the future.

For more information about Wills, contact The Planning Bee today. Our expert paralegals are available for a free, no-obligation chat about all aspects of later life planning.

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