Statutory Will UK (2026): When the Court of Protection Makes a Will
Updated 13 May 2026 · 8 min read · England & Wales
Making a will requires mental capacity. When a person loses that capacity — through dementia, stroke, or brain injury — they can no longer make or change their own will. If their existing will (or the intestacy rules) would produce an unfair or inappropriate outcome, the Court of Protection has power to authorise a statutory willon their behalf. This is a complex, expensive, and slow process — and a powerful argument for making a will while you still can.
What is a statutory will and when is it needed?
A statutory will is a will made by the Court of Protection under s18(1)(i) Mental Capacity Act 2005, executed on behalf of a person (“P”) who lacks testamentary capacity. It has full legal effect — as if P had signed the will themselves. Common situations requiring a statutory will:
- P has no will and would die intestate, passing assets to estranged relatives rather than carers or long-term partners
- P’s existing will is outdated — a spouse has died, the estate has changed significantly, or a beneficiary has predeceased
- Tax planning opportunities exist that P’s existing will or intestacy would waste
- There is a family dispute about P’s intended wishes
- The deputy or LPA attorney wishes to make gifts beyond their normal authority
Who can make a testamentary capacity assessment?
Before applying for a statutory will, a capacity assessment must establish that P cannot make their own will. The assessment uses the MCA 2005 capacity test — specifically, whether P can understand the nature of making a will, the extent of their estate, and the claims of those who might expect to benefit.
The assessment is usually carried out by a consultant psychiatrist, neurologist, or GP with experience in capacity assessments. A formal written report is required for the Court of Protection application. If there is any doubt — especially in progressive conditions — consider whether capacity could be present for this specific decision before embarking on the Court route.
The statutory will process step by step
| Stage | Detail | Approximate timing |
|---|---|---|
| Capacity assessment | Medical report confirming P cannot make their own will | Weeks |
| Draft proposed will | Solicitor drafts will in P’s best interests | Weeks |
| File COP1 application | Court fee £365; witness statement and supporting evidence | Day 1 |
| Official Solicitor appointed | To represent P’s interests; may investigate and report | Months after filing |
| Notify interested parties | Beneficiaries under existing will / intestacy must be served | After filing |
| Hearing / paper determination | Court approves, amends, or refuses the statutory will | 6–18 months from filing |
| Execution by Court officer | Signed in P’s name; witnessed; legally valid will | After approval |
Costs of a statutory will application
A statutory will application is expensive. Rough costs:
- Court fees: £365 (application) + £494 (hearing, if listed)
- Solicitor fees: £5,000–£15,000+ for uncontested; significantly more if contested
- Official Solicitor fees: paid from P’s estate; can be several thousand pounds
- Medical capacity assessment: £500–£2,000+
Total costs from P’s estate: commonly £10,000–£25,000 for a straightforward application. This underscores why making a valid will while capacity exists is so important — the lifetime cost of a professionally drafted will is a fraction of this.
Best interests — the court’s approach
The Court does not simply approve whatever the applicant proposes. It must be satisfied that the statutory will is in P’s best interests (s4 MCA 2005), considering:
- P’s past expressed wishes and preferences (previous wills, conversations, written notes)
- P’s values, beliefs, and relationships
- What P would likely have done had they retained capacity
- The financial position of potential beneficiaries
- Inheritance tax and estate planning considerations
The Official Solicitor investigates and reports to the Court. In contested applications, family members who disagree with the proposed will can make their case at the hearing.
Frequently asked questions
What is a statutory will?
A statutory will is a will made by the Court of Protection on behalf of a person ('P') who lacks the mental capacity to make or change their own will. The Court acts under s18(1)(i) Mental Capacity Act 2005, which gives it power to execute a will for P. The will is executed by a nominated officer of the Court and signed in P's name — it has the same legal effect as a will P had made themselves. A statutory will can be a new will (where P has none), a replacement will (revoking an existing one), or a codicil (modifying an existing will). It is used when P's existing will — or the intestacy rules — would lead to an outcome that is not in P's best interests given their changed circumstances.
When is a statutory will needed?
Common situations: (1) P has no will and the intestacy rules would produce a poor outcome — e.g. estranged relatives would inherit instead of carers or long-term partners. (2) P made a will before losing capacity but circumstances have changed significantly — a spouse has died, a beneficiary has predeceased, a major asset has been acquired, or tax planning has become relevant. (3) A deputy or attorney wants to make gifts or inheritance tax planning arrangements on P's behalf that go beyond their statutory authority. (4) There is a dispute among family members about how P's estate should be distributed. The Court only authorises a statutory will if it is in P's best interests — this is assessed carefully and includes P's past wishes, values, relationships, and the likely distribution on intestacy.
Who can apply for a statutory will?
Any person with sufficient interest can apply to the Court of Protection for a statutory will. In practice, applications are usually made by: a deputy (court-appointed financial manager); a person who holds a Registered Property and Financial Affairs LPA; a family member or close friend; a professional involved in P's care. HMRC or a creditor with a financial interest can also apply in theory. The applicant must demonstrate that: P lacks capacity to make a will; the proposed will reflects P's best interests; the draft will is reasonable in its terms.
What is the process for obtaining a statutory will?
The process: (1) Instruct a solicitor experienced in Court of Protection work — statutory will applications are specialist proceedings. (2) Obtain a capacity assessment confirming P cannot make their own will. (3) Draft the proposed statutory will. (4) File a COP1 application form and COP24 witness statement at the Court of Protection, with supporting evidence: capacity report, proposed will draft, details of P's assets, family circumstances, and existing will (if any). (5) The Official Solicitor is usually appointed to represent P's interests. (6) Applicant serves all interested parties (beneficiaries under the existing will or intestacy). (7) A hearing is listed — straightforward cases may be decided on the papers; contested applications require a full hearing. (8) If approved, a Court officer executes the will on P's behalf.
How long does a statutory will application take?
The Court of Protection is notoriously slow. A straightforward, uncontested statutory will application typically takes 6–18 months from filing to approval. Complex or contested applications can take 2–3 years. The Court is prioritising urgent applications (e.g. where P is terminally ill), but even these can take weeks to months. The delay means it is critical to apply as early as possible — if P dies before the statutory will is executed, the existing will or intestacy rules apply.
How much does a statutory will cost?
Costs are significant. Court fees: £365 to issue the application; £494 for a hearing fee if listed. Solicitor fees: typically £5,000–£15,000+ depending on complexity, length of proceedings, and whether the application is contested. The Official Solicitor's costs are usually met from P's estate. In contested applications, all parties may have their costs assessed and paid from the estate. This makes a statutory will substantially more expensive than making a will during lifetime — reinforcing the importance of making a valid will and LPA while capacity exists.
Does a statutory will revoke previous wills?
Yes — the Court specifies whether the statutory will revokes any existing will. The usual form of a statutory will begins with a revocation clause (as a standard will does). Once the statutory will is executed by the Court officer, it supersedes any previous will made by P. If P later regains capacity (rare but possible in some conditions), they can make a new will themselves, which would revoke the statutory will. P's death revokes nothing — the statutory will continues to apply.
Make your will while you still can
A statutory will costs tens of thousands of pounds and takes years. Making your own will costs a fraction of that and takes hours. WillSafe’s Essentials Bundle includes a will template and LPA guidance — protecting your estate and your family.
Get the Essentials Bundle →Related guides
- LPA and the Mental Capacity Act — full guide
- Testamentary capacity — the legal test for making a will
- Making an LPA after a dementia diagnosis
- Writing a will when seriously ill
- Contesting a will — all grounds explained