What is a Statutory Will?

It is true to say that no one wants to consider their own demise, but failure to leave a valid Will can cause issues for those who are left behind. The intestacy rules dictate who is entitled to benefit where there isn’t a Will, but these may not be in line with the wishes of the person leaving an estate.

While an individual has mental capacity to make a Will, they are free to make and amend a Will to leave their estate to whomever you want.

For those who lack mental capacity to make a Will (known as testamentary capacity), the process of making a Will is a lot more complicated. In these circumstances, the Court of Protection (COP) can authorise a Statutory Will to be created.

For this, an application is made to the COP, typically by an Attorney or Deputy, for a Will. Within the application it is necessary to set out why the Will is in the best interests of the person lacking capacity, notifying everyone who will be impacted by the creation of the statutory Will (including all current and proposed beneficiaries) and providing full details of the finances within the Estate.

Once with the COP, the Official Solicitor will be appointed to represent the vulnerable individual. It is also possible for those impacted by the Statutory Will to become a party to the application and appoint their own legal representatives.

The process of obtaining a Statutory Will can also be quite long, with some taking multiple years to complete. The COP can consider urgent applications, however this will depend on whether there are any objections to the application which has been submitted.

Overall the process of making a Statutory Will is usually long and expensive. This is exaggerated further if there are objections to the proposed Wills which will inevitably lead to further discussions and Court hearings.