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What is a Statutory Will and when are they required?

Our People - Samuel Cole
9 May, 2024

As a starting point, the law of England and Wales states that any person aged 18 or over can make a will, providing they have testamentary capacity at the time the will is made. In order to have testamentary capacity, the person must understand the nature of making or changing a will, understand the extent of their assets and consider those who they ought to make provision for.

However, if a person lacks testamentary capacity, the Court of Protection can order a will, known as a statutory will, to be created on their behalf.

What factors will the Court consider when assessing a Statutory Will application?

In exercising its power, the Court must make a decision in the person’s best interests and take into account:

  • The person’s past and present wishes and feelings.
  • The beliefs and values which would be likely to influence the person’s decision if they had capacity.
  • Other factors that the person would be likely to consider if they had capacity.
  • The views of anyone named by the person, who is involved in the person’s care, any attorney(s) under a lasting power of attorney and any court appointed deputies.

Generally, the Court of Protection are most likely to exercise their power if the person does not have a will (in which case the statutory rules of intestacy will determine who inherits the person’s estate) or there has been a significant change in the person’s circumstances.

How to make a Statutory Will application

Making a statutory will application requires a significant amount of information to be gathered and a number of Court of Protection forms to be completed. For example, it includes:

  • Drafting the proposed will.
  • Obtaining the consent of proposed executors and trustees.
  • Obtaining a medical capacity report.
  • Obtaining a comprehensive family tree.
  • Gathering the person’s financial information.

Once the application is ready to be submitted, the completed forms and supporting documents must be sent to the Court of Protection along with payment of the application fee.

If the person to whom the application relates is expected to die imminently, an emergency/urgent application may be made.

What happens after the application is submitted?

The Court will send correspondence to the applicant to confirm that the application has been received and to outline the next steps which the applicant must take. For instance, it may outline that the applicant is required to serve the application on the person to whom the application relates, anyone affected by the proposed statutory will, and the Official Solicitor (a government official who acts in court cases on behalf of people who lack capacity to make decisions for themselves). 

The parties to the proceedings will first be given time to reach an agreement on the proposed statutory will. Shortly after, the Court will inform the applicant of whether their application has been approved, or rejected, or if further information is required, or if a hearing is to be held.

If the Court accept the application, the statutory will has to be signed and witnessed. It will have the same effect as if the person who lacks capacity had made the will themselves. When this person dies, the will can be handled in the normal way, such as, to apply for probate if it is needed.

How much does making a Statutory Will cost?

The overall costs can vary markedly depending on the complexity and facts of each application. A relatively straightforward application which is uncontested may cost around £5,000 whereas, a complex application which is contested may result in costs between £10,000 to £15,000. Usually, these costs will be paid out of the estate of the person to whom the application relates, however, the Court may make an order that someone else should pay.  

The costs are likely to be made up of:

  • Disbursements for will writers, medical experts and genealogists. 
  • The court or application fee of £408 and a further fee of £494 if a hearing is listed. Depending on the circumstances of the person you are applying for, it may be possible to apply for a fee remission.
  • Barrister’s fees – for example, for their opinion as to the merits of an application and their representation at a hearing.
  • The Official Solicitor’s fees for acting as the person’s litigation friend.
  • Solicitor’s fees for assisting with the application and proceedings. If it is appropriate, a fixed fee can be agreed, otherwise, these fees will be assessed at the conclusion of proceedings.

How long does it take to make a Statutory Will?

Once again, this will depend on the facts and complexities of each case but as a general guide, making a statutory will can take between 6 and 12 months.

Contact a GN Law Solicitor

As you will be aware from reading this article, making a Statutory Will requires a significant amount of work from start to finish. If you require advice or assistance in respect of any part of the process, please feel free to contact our experienced Wills Solicitors or our specialist Court of Protection Solicitors. Alternatively, please call us on 020 8492 2290

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