What is a statutory will?

A statutory will is made on behalf of an individual who does not have the mental capacity to make a will themselves (ie they do not have 'testamentary capacity'). A statutory will can include any provision which could be included in an ordinary will – although statutory wills are currently limited to governing assets in England and Wales.

In order to apply for a statutory will, an assessment of capacity will need to be completed by a medical practitioner using the COP3 form and confirming that the person lacks testamentary capacity.  

In the application the Court will require information about the individual, any previous will, their affairs and their family and any other information that is relevant to deciding the terms of the individual's statutory will.

The Court will order that certain interested individuals are told about the application (for instance, close family members who would inherit if the individual died without a will, or those who benefit under the person's current will).  The Court may also order that the Official Solicitor is joined to the application, to represent the interests of the individual who lacks capacity (see here for more information on the Official Solicitor's role).  

The Court will then review the application and decide whether and on what terms the will should be granted.  It may hold a hearing as part of this process or may make a decision 'on the papers' (ie without a hearing).  If the Court decides that a statutory will should be made, it will make an order approving the draft will and authorising it to be executed on behalf of the individual. Once executed, the statutory will operates in the same was as any other will.

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