Statutory Wills

In what circumstances may a Statutory Will be required?

An application for a Statutory Will may be necessary when a person/patient who has not made a Will (or has failed to keep their Will updated for current circumstances) now lacks the 'testamentary capacity' to do so, and is therefore incapable of executing a new Will themselves.

The Court of Protection will consider granting an order for a Statutory Will only if it is in the patient's best interests and in doing so they must consider the following :-

  • The patient's past and present wishes and feelings, particularly any relevant written statement made by the patient prior to losing capacity
  • The patient's ability to participate in the decision
  • The views of third parties as to the patient's best interests

What is the procedure to be followed to apply for a statutory Will?

The procedure is set out under the Court of Protection Rules 2007 and involves submitting the following information and documents:

  • Medical evidence of testamentary capacity
  • Confirmation of residence or domicile
  • A copy of the proposed draft Will or codicil
  • A copy of any existing Will or codicil
  • A copy of any registered enduring power of attorney or lasting power of attorney
  • The patient's family tree
  • Consents to act from the proposed executors
  • An explanation of why the patient might be expected to provide for the proposed beneficiaries
  • A schedule of assets
  • A schedule of income and outgoings
  • Calculations of any inheritance tax payable in the event of the patient's death

Once the application has been received and considered, the Court will set a hearing date and instruct the applicant to serve all interest parties with the necessary documentation.

In the absence of any dispute regarding the proposed Will, the Court may issue the order without a hearing, but if a hearing is needed costs can become significant and may be awarded against the applicant.


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