If your parent is living with dementia, the after effects of a stroke, or something else that is affecting their mental capacity to make their own decisions, you will need to know about Statutory Wills. Our guide explains what a Statutory Will is, when you might need one and how to apply for one via the Court of Protection.
What is a Statutory Will?
A Statutory Will is written on behalf of someone who is unable to write their own will, and approved by the Court of Protection. If a person no longer has the mental capacity to make decisions themselves, understand the consequences of those decisions, or are unable to communicate their wishes, they’re no longer able to write their own Will.
The capacity to make your own Will is known as ‘Testamentary Capacity’. If someone no longer meets Testamentary Capacity, they will need a Statutory Will.
In their best interests
Throughout the writing and approval of a Statutory Will, the priority is that everything is done in your loved one’s best interests. This means that, as far as possible, it will take into account any past or present wishes and feelings that the individual has expressed. Any relevant written statements made by the person when they still had capacity can be particularly useful.
The Court of Protection is responsible for Statutory Wills, and the process usually takes longer than a normal Will. Although it is sometimes possible to speed the process up if you can show that the matter is urgent because someone’s death is imminent.
When are Statutory Wills Needed?
If a person without mental capacity needs a Will, but is able to direct someone to do so on their behalf, then a Statutory Will may not be needed.
Not having the mental capacity to manage finances, for example, does not mean that a person is unable to make a Will. Each situation will be different so it is best to seek professional legal and/or medical advice as to whether a person no longer has Testamentary Capacity.
If the person in question already has a Will, but changes need to be made to it, you will also most likely need to apply for a Statutory Will.
Dementia is a common complication when it comes to Statutory Wills, as just having dementia is often not enough of a cause for a Statutory Will. However, if a professional advises that person’s dementia means they are unable to make a Will, or that a current Will can no longer be amended, you will need to apply for a Statutory Will.
Potential circumstances a Statutory Will might be needed:
- The person who needs the Will has never made one before.
- An existing Will contains high value assets.
- The assets within a Will have increased or decreased in value.
- For tax planning reasons.
- Beneficiaries have already been given a large proportion of assets from the Will, and the Will needs to be adjusted.
- Beneficiaries have passed away and their allocation needs to be changed.
- An asset or property is no longer valid.
- Provisions need to be made for new and future care costs for the owner of the Will.
What is the Court of Protection?
The Court of Protection is separate from the main courts and is designed specifically to deal with cases where someone no longer has the mental capacity to make decisions for themselves. The aim of the Court of Protection is to protect the best interests, wellbeing, welfare and wishes of those who have lost their mental capacity, and can no longer make certain decisions on their own. It is the Court of Protection that will deal with applications for Statutory Wills. In Scotland it is called the Office of the Public Guardian, however, Scottish applications will still need to be made to the UK Court of Protection first.
The contact details for the Court of Protection are as follows:
Court of Protection, PO Box 70185, First Avenue House, 42-49 High Holborn, London, WC1A 9JA, 0300 456 4600
Making a Statutory Will Application
Once a solicitor and/or doctor has advised whether a Statutory Will is needed, you can start the application to the Court of Protection. There are some forms that need to be filled out and some supporting documents that you’ll need to supply. The Court of Protection will not accept every application as they might conclude that a statutory Will is not necessary – your solicitor will be able to gauge if your application has a good chance of going through. When you send the forms and documents you will also have to send payment.
Forms to Fill Out
There are 4 forms that you will need to download, complete and send to the Court of Protection. These include:
- Application form (COP1)
- Witness statement (COP24)
- Information form (COP1C)
- Assessment of capacity form (COP3) – this needs input from your family doctor.
You can also find these documents on the government’s website.
You will need to include a large amount of supporting documentation and information to complete the application.
Supporting Documents and Information to Include
- A copy of the person’s current will and any amendments (‘codicils’).
- A copy of the proposed new will or codicil.
- A copy of any deputyship order - a deputy is someone who the Court of Protection has ruled can make decision on behalf of another.
- Details of the people who have agreed to deal with the will after the person’s death (‘executors’).
- A copy of any registered lasting power of attorney (LPA) or registered enduring power of attorney.
- The person’s family tree including full names and dates of birth.
- Reasons the person might be expected to provide for people named in the will (‘beneficiaries’).
- A schedule of the person's assets, income, and spending.
- The person’s address and details about where they’re living, for example care home or hospital.
- Details on any Capital Gains Tax, Inheritance Tax or Income Tax which may be chargeable due to a new will.
- An explanation as to why the applicant considers the proposed Statutory Will to be in the person's best interests.
How much does a Statutory Will cost?
The application for a Statutory Will costs £365.
This does not include solicitors fees or if the application goes to court. You may also have to pay:
- £485 – if the Court of Protection decides to hold a hearing.
- Solicitor’s fees – if a solicitor is appointed as a litigation friend, who makes court decisions on behalf of the person in question. If you act as the litigation friend you will not have to pay this.
- Counsel’s fees (if applicable).
How to pay for a Statutory Will application
To pay for a statutory application you should enclose a cheque for the correct amount with the forms and supporting document. You need to make it payable to ‘HM Courts and Tribunals Service’. If you are eligible for a payment exemption, attach the ‘application for a fee remission’ with the cheque. They won’t charge you if you meet the requirements below.
If the person you are applying for as a very low (or no) income, or is on certain benefits they may be eligible for a refund. Read and fill out the ‘application for a fee remission‘ to find out if they are eligible not to pay.
What happens after I've applied for a Statutory Will?
First, the Court of Protection will send you a letter confirming that they have received the application. They will also send you some directions on what to do next. This might include paying for a solicitor to be a litigation friend. If the Statutory Will is an amendment to an existing will, you will need to serve the application on people who are included in the original Will. You can do this with two additional documents that you send to each person: ‘Notice that an application form has been issued (COP15)’ and an ‘Acknowledgment of service form (COP5)’.
The Court of Protection will then start to consider the application and decide whether a Statutory Will is needed. To make this decision they will take into account all the supporting evidence and try to include the person in question as much as possible. Their priority is to produce an outcome that is in the vulnerable person’s best interests.
Once they inform you of a decision you will have 21 days to appeal the outcome, which will incur separate fees.
If your parent needs a statutory Will it is very likely that, if you haven't already done so, you will need to look into getting a Lasting Power of Attorney.