Statutory Wills: When the Court Can Make a Will for Someone

When a person develops dementia, suffers a severe brain injury, or has a learning disability that prevents them from understanding the nature of a will, they may lack the mental capacity to make or update their own will. If they die without a valid will, their estate passes under the intestacy rules, which may produce a result the person would never have wanted. The Court of Protection can intervene — but the process is not straightforward.

The Legal Basis: Mental Capacity Act 2005

The Court of Protection derives its power to authorise a statutory will from section 18(1)(i) of the Mental Capacity Act 2005. This section gives the court authority to make decisions about a “protected person’s” property and affairs when they lack the capacity to make those decisions themselves.

The Mental Capacity Act 2005 defines mental capacity in relation to specific decisions at specific times. A person lacks capacity for a particular decision if, due to an impairment or disturbance in the functioning of their mind or brain, they cannot:

• Understand the information relevant to the decision;
• Retain that information;
• Use or weigh that information as part of the process of making the decision; or
• Communicate their decision (by any means).

The capacity test for making a will — sometimes called testamentary capacity — has additional requirements established by case law (Banks v Goodfellow [1870]). A person making a will must understand the nature of the act of making a will, the extent of the property they are disposing of, the claims of those who might expect to benefit, and not suffer from a disorder of the mind that poisons their affections or perverts their sense of right. The Court of Protection applies a functional rather than diagnostic approach — a diagnosis of dementia does not automatically mean a person lacks capacity.

When Is a Statutory Will Appropriate?

Not every person who lacks testamentary capacity needs a statutory will. The Court of Protection will generally consider an application appropriate where:

• The estate is of significant value — the expense of Court of Protection proceedings is only proportionate where there is a meaningful estate at stake. There is no hard threshold, but applications are rarely justified for estates worth less than £100,000.
• The intestacy position is unjust or clearly wrong— for example, where the person has no spouse or children (so the estate would pass to a distant relative) but had clearly expressed a wish to benefit a charity, a long-term carer, or a step-child who is not a biological relative.
• Family circumstances have changed substantially— a surviving spouse has remarried (revoking an earlier will), beneficiaries named in an old will have predeceased the person, or a new relationship exists that the old will does not reflect.
• Tax planning is needed — a statutory will can be used to take advantage of inheritance tax exemptions (such as gifts to charity or the surviving spouse) that the current position would not utilise.

The Application Process: Forms and Evidence

An application for a statutory will is made to the Court of Protection. The key steps are:

• Form COP1 — the general application form for the Court of Protection. This sets out who is making the application, who the protected person (called “P” in court documents) is, and what order is being sought.
• Form COP1C — the supplementary form specifically for applications relating to statutory wills, trusts, and settlements. This provides more detailed information about the protected person’s estate, their relationships, and the proposed terms of the will.
• Capacity evidence — a formal assessment of the protected person’s mental capacity, typically provided by a psychiatrist, consultant geriatrician, or other suitably qualified medical professional. This must follow the format required by the Court of Protection Rules 2017. A GP’s letter is generally insufficient.
• A draft will — the applicant must submit a draft of the proposed statutory will as part of the application. This is prepared by a solicitor experienced in Court of Protection work and should reflect the protected person’s known wishes, values, and relationships.
• Court fee — the court fee for a statutory will application is currently £371 (as of 2025). Fee remission may be available in some circumstances.

All people with a relevant interest — typically family members, close friends, and any professional deputies or attorneys — must be notified of the application and given an opportunity to respond. The Official Solicitor is usually notified as a matter of course and will consider whether to become involved.

The Official Solicitor’s Role

The Official Solicitor is an independent statutory officer of the court. In Court of Protection proceedings, the Official Solicitor may be appointed to act as the litigation friend of the protected person (P) — meaning they represent P’s interests in the proceedings, independently of all the other parties.

The Official Solicitor is typically appointed as litigation friend where:

• P has no other suitable person to act as their litigation friend (a litigation friend cannot be someone with an adverse interest to P in the proceedings — so a family member who stands to benefit from the proposed will cannot act);
• The application is contested or raises complex issues; or
• The court considers it necessary to appoint the Official Solicitor to protect P’s interests.

The Official Solicitor does not act for free — their costs are charged to the estate. However, their involvement provides independent scrutiny of the application and is a safeguard against family members promoting a will that serves their own interests rather than P’s.

Costs: What to Expect

Court of Protection proceedings for a statutory will are expensive. Realistic cost expectations are:

• Solicitor’s fees: £3,000–£10,000+ for preparing and managing the application, depending on complexity and whether the application is contested.
• Capacity assessment: £500–£2,000 for a psychiatric assessment meeting the court’s requirements.
• Official Solicitor’s costs: Charged at standard court rates if appointed — potentially £2,000–£5,000.
• Court fee: £371 (current standard fee).

In most cases, the costs are paid from the protected person’s own estate, as the application is for their benefit. However, if an application is made primarily in the interests of beneficiaries rather than P, the court may order a different costs arrangement. Legal costs in contested cases can be significantly higher — sometimes £20,000–£50,000 where there is a full hearing.

Given these costs, it is essential to take legal advice at the outset to assess whether an application is proportionate and likely to succeed. A solicitor experienced in Court of Protection work — ideally a member of Solicitors for the Elderly or the Court of Protection Practitioners Association (CoPPA) — should be your first point of contact.