Theresa Mills
Associate Solicitor
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Date Published:10 Mar 2016 Last Updated:26 Jul 2021

Statutory Wills – When, Why and How

Wills, Trusts & Probate

Statutory Wills

The importance of making a Will so that your loved ones benefit how you want them to on your death cannot be underestimated. In order to make a Will you must have capacity to do so, known as testamentary capacity. If you permanently lose capacity, as so many people do due to dementia or more suddenly in cases of strokes, you cannot make or amend a Will in the normal way but it is possible, in some circumstances, to apply to the court for something known as a Statutory Will.

The court must be convinced that there are reasons for changing an existing Will, or if the person does not already have a Will, the default position under the Intestacy Rules. The court is likely to only consider a Statutory Will where there has been an important change in the person’s circumstances or property.

Capacity

The question of Capacity is not always straightforward, it is important to remember that:

  • A person is considered to have capacity until it is shown that they do not;
  • It is possible to have capacity in respect of some decisions and not others at the same time; and
  • Just because a person is unable to make a decision one day does not mean that they will not be able to make a decision the next day.

If applying for a Statutory Will medical evidence regarding the person’s capacity is required.

Best Interests

As with any decision made under the Mental Capacity Act 2005, the decision to make a Statutory Will must be in the best interests of the person concerned.

What is in a person’s best interests? When answering this question the following considerations are important:

  • The person’s wishes and feelings at present;
  • Beliefs and values which were held by the person which would likely influence their decision if they still had capacity;
  • Any other factors the person would have been likely to consider;
  • Information provided by anybody named by the person as somebody to be consulted;
  • Information provided by carers;
  • Information provided by any attorney under a Lasting or Enduring Power of Attorney; and
  • Information provided by any court appointed deputy.

Where possible the person should still be involved in decisions which affect them.

The Application Process

Anybody may apply to make a Statutory Will on behalf of a person who lacks testamentary capacity. However, an applicant will need permission from the court if they would not normally be expected to make such an application. Attorneys under a LPA and family members who would benefit under the person’s current arrangements do not need permission.

The application itself requires details of the person’s finances and family arrangements along with medical evidence on the person’s lack of capacity.

At court the Official Solicitor or a litigation friend may be asked to assist and represent the person who the application is about.

If the court is satisfied with the Statutory Will it is signed on behalf of the person who has lost capacity before 2 witnesses and the court will seal the Will.