Statutory Will: How the Court of Protection Makes a Will for Someone Who Has Lost Capacity

Updated: 16 May 2026 • Reading time: 8 min

When a person loses mental capacity without having made a will, their estate will pass under the intestacy rules on death — regardless of the relationships they valued and the people they wished to provide for. The Court of Protection has power under s.18 Mental Capacity Act 2005 to remedy this by making a statutory will on the person’s behalf. The process is complex and expensive, but it can make a material difference — particularly for cohabiting partners, stepchildren, and charities who would otherwise receive nothing under intestacy.

The Legal Basis: s.18 Mental Capacity Act 2005

Section 18(1)(i) MCA 2005 gives the Court of Protection the power to make, vary, or revoke a will for a person who lacks testamentary capacity. The court exercises this jurisdiction as a “last resort” measure — it steps into the shoes of the incapacitated person (called “P” in the proceedings) and makes the will that P would most likely have made, applying the best interests test in s.4 MCA 2005.

A statutory will is not a substitute for a properly made will. It is a court-supervised remedy for the situation that arises when a person has not made adequate provision while they had capacity. The considerable time, cost, and uncertainty of the process is a compelling reason for anyone who owns assets to make a will while they can.

When Is a Statutory Will Appropriate?

The main situations where a statutory will application is made:

• P has never made a will — on death, the estate would pass under the intestacy rules. This is particularly damaging for cohabiting partners (who inherit nothing under intestacy) and for stepchildren (who are not treated as children under the intestacy rules).
• P’s existing will is outdated — made before a divorce (which partially revokes the will under s.18A Wills Act 1837 but does not update it), a remarriage (which revokes the prior will entirely), a significant change in assets, or the death of all named beneficiaries.
• Tax planning — where a new will could significantly reduce the IHT liability on P’s estate, benefiting the people P would have wished to favour.
• Charitable giving — where there is evidence P wished to benefit a charity, and the current will or intestacy outcome does not reflect this.

The Best Interests Test in Practice

The court does not simply approve whatever the applicant proposes. Under s.4 MCA 2005, it must determine P’s best interests by considering:

• P’s past and present wishes and feelings — any written expressions of intent, verbal statements, lifestyle choices
• P’s beliefs and values — religious, cultural, or moral values that shaped their view of family obligations
• The views of people who care for P or have an interest in P’s welfare
• Whether P might regain capacity — if so, the application may be deferred
• The impact of the proposed will on P’s relationships and care arrangements while alive

The leading cases — including Re D (Statutory Will) [2010] EWHC 2159 and Re M [2009] EWHC 2525 — confirm that the court is trying to make the will P would have made, not the will that seems most fair or most equitable to the applicant. Evidence of P’s pre-incapacity statements, relationships, and intentions carries significant weight.

The Application Process Step by Step

1. Obtain a capacity assessment — a suitably qualified clinician (consultant psychiatrist, GP with MCA experience, or clinical psychologist) assesses P’s capacity to make a will using the MCA 2005 two-stage test (impairment/disturbance + inability to make the decision). The assessment must be current — courts will not rely on assessments more than a few months old without explanation.
2. Draft the proposed will — a solicitor drafts the will P would most likely have made, based on available evidence of P’s wishes and circumstances.
3. Issue the application — forms COP1 and COP1D, supported by a COP24 witness statement, are filed at the Court of Protection with the court fee (£371 in 2026).
4. Notify interested parties — P, all persons who would benefit under the proposed will, all persons who would benefit under P’s existing will or intestacy, and any deputy or attorney must all be notified. The Official Solicitor is usually joined as P’s litigation friend.
5. Hearing — in straightforward cases, the judge may approve the will on the papers without a full hearing. Contested cases require one or more hearings with evidence and legal argument.
6. Court order and execution — the court makes an order authorising the will in a specified form. The will is then executed by a person authorised by the court (typically the applicant or a court officer) on P’s behalf, in P’s presence.

Cost and Timeline

Statutory will proceedings are expensive and slow. Indicative figures for 2026:

• Court fee: £371
• Capacity assessment: £500–£2,000
• Official Solicitor’s costs (recovered from P’s estate): £5,000–£15,000+
• Applicant’s solicitor costs: £8,000–£20,000+ uncontested; much higher if contested
• Total timeline: 6–12 months uncontested; 18–36+ months contested

The applicant’s costs may be recoverable from P’s estate if the court considers the application was reasonably brought, but recovery is not guaranteed. The cost of a statutory will application — even in an uncontested case — typically far exceeds the cost of making a will while capacity exists.

Statutory Will vs Deputyship vs LPA

A statutory will solves only the will problem — it does not give anyone authority to manage P’s affairs while they are alive. Where P has lost capacity without an LPA, a deputyship application is also needed to manage P’s property and financial affairs. The two applications can sometimes be combined, but they are separate proceedings. Making both a will and an LPA while you have capacity entirely avoids the need for both a statutory will and a deputyship.

Frequently Asked Questions