Sharon Bell, Partner and a member of MWs Estate and Trust Dispute Team outlines the role of the Court of Protection and the circumstances when a Statutory Will may be necessary.

Statutory Wills and the Role of the Court of Protection


Sharon Leanne Bell
Sharon Leanne Bell
Partner and Estate & Trust Dispute Specialist

Statutory Wills are made by the Court of Protection. The Court of Protection is a specialist court set up to protect the interests of those who cannot make financial and welfare decisions for themselves because they lack mental capacity. 

A person who lacks mental capacity, by definition, is not in a position to make a Will or make any amendments to their existing Will. However, if the making of a Will or an amendment to any Will is considered necessary then the only way someone can make a Will on behalf of a person who lacks capacity is by making an application to the Court of Protection for a Statutory Will.

A Statutory Will may be considered necessary if:

  • the person making a Will has never made one before
  • the estate has increased in value and tax planning is required
  • the estate has decreased in value
  • a beneficiary has received a substantial gifts and the will should be adjusted
  • a beneficiary (or beneficiaries) under an existing will has passed away.

The Court of Protection is most likely to allow a Statutory Will if the person who lacks capacity has never made a Will or there has been a significant change in their circumstances.

The Court will consider whether or not it is in the vulnerable person’s “best interests” for a Statutory Will to be made. It is usual that the Official Solicitor will be appointed as an independent party to represent the interests of a vulnerable person.

The Court will always try to encourage the vulnerable person to be a participant in the proceedings if possible and the court will look at the criteria laid down in Section 4 of the Mental Capacity Act 2005 as to deciding what is in the vulnerable person’s best interests. The court will look at:

  • past and present wishes and in particular any previous testamentary wishes that may have been made when the vulnerable person had capacity
  • the beliefs and values that would be likely to influence the vulnerable person’s decision if they had capacity
  • other factors that the vulnerable person would be likely to consider if they were able to do so.

The court will also take into account how the vulnerable person may wish to be remembered after their death. It is arguably in their best interests that they are remembered with fond memories and affection.

Every case will be different and the court has a wide discretion as no one factor in the Section 4 criteria will outweigh any other. The court just has to be satisfied that the making of a Statutory Will is in the best interests of the vulnerable person.

We Can Help

At MW, Our Mission is “to make quality legal services accessible to everyone” including those who lack the capacity to act for themselves.  Our Specialist Estate & Trust Dispute Team have extensive experience handling Statutory Will applications.

If you would like more information on  a Statutory Will could be in the best interests of a family member who lacks capacity then take advantage of our FREE CASE REVIEW; call us today on 020 3551 8500 or email us at enquiries@mwsolicitors.co.uk

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