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Wills & Capacity

Statutory Wills: A Will for Someone Without Capacity

A statutory will is a will made by the Court of Protection on behalf of a person who no longer has the mental capacity to make one themselves.

10 min read · Written by the Fairchild Oldfield team · Last reviewed: July 2026

£421
The current fee to apply to the Court of Protection for a statutory will, with a further £259 if the court holds a hearing. Help with fees may be available in some circumstances.
Source: gov.uk, as at July 2026, subject to change.

A statutory will is a will made for someone who lacks the mental capacity to make one for themselves. It is not signed by that person. Instead, the Court of Protection authorises a will on their behalf, after deciding what is in their best interests.

This route matters because an ordinary will needs the person making it to understand what they own, who might expect to benefit, and what a will does. Where dementia, brain injury or serious illness has removed that understanding, no valid ordinary will can be made, and the Court of Protection route becomes the only way to put a will in place (gov.uk, make a statutory will, as at July 2026, subject to change). This guide forms part of our wider estate planning guide. Figures are current as at July 2026 and are subject to change.

What is a statutory will?

A statutory will is a will that the Court of Protection makes for a person who cannot make one themselves because they lack mental capacity. The court reviews their circumstances and decides what a will should say, acting in that person's best interests under the Mental Capacity Act 2005 (legislation.gov.uk, Mental Capacity Act 2005, as at July 2026).

When is a statutory will needed?

A statutory will is generally needed where someone can no longer make or update a valid will, yet a will is required. That can arise where a person has no will and the intestacy rules would produce an unwanted result, where an existing will no longer fits their circumstances, or where a main beneficiary has died. The person must be unable to understand what making a will means and how it affects those close to them (gov.uk, as at July 2026, subject to change).

  • No existing will. The intestacy rules would otherwise decide who inherits, which may not reflect the person's known wishes.
  • An outdated will. A change in circumstances, such as a marriage, divorce or a large inheritance, has made the current will unsuitable.
  • A beneficiary has died. The person named to inherit is no longer alive and the will cannot be updated in the usual way.

Who can apply for a statutory will?

Anyone with a proper interest can apply, though the court controls who may proceed. In practice, applications often come from a deputy appointed through the Court of Protection, an attorney under a registered power of attorney, a close family member, or a person who would benefit under an existing or proposed will. Some applicants need the court's permission first (gov.uk, as at July 2026, subject to change).

The legal test

The best interests test

The court does not simply do what the applicant asks. It must decide what is in the best interests of the person who lacks capacity, weighing their past and present wishes, their beliefs and values, and the views of those close to them. This duty comes from the Mental Capacity Act 2005, which governs decisions made for people who cannot make them for themselves (legislation.gov.uk, Mental Capacity Act 2005 s.4, as at July 2026).

Because the test looks at the individual, two people in similar financial positions can end up with very different wills. The court considers what the person would likely have wanted, so far as that can be known, rather than what produces the neatest result for the family or the smallest tax bill. Understanding mental capacity and how it is assessed is central to any application.

The guiding principle

Best interests

Every statutory will must be made in the best interests of the person who lacks capacity, taking account of their known wishes, feelings, beliefs and values under the Mental Capacity Act 2005 (legislation.gov.uk, as at July 2026).

How to apply

Applying to the Court of Protection

I

Prepare the forms

Complete the application (COP1), an information form (COP1C), a witness statement (COP24) and a capacity assessment (COP3) signed by a doctor. Source: gov.uk, as at July 2026, subject to change.

II

Pay the fee

Submit the application with the £421 fee, or a fee remission form if the person has low or no income. Source: gov.uk, as at July 2026, subject to change.

III

Notify interested people

Serve the papers on those affected, such as people named in a current or proposed will, so they can respond.

IV

The court decides

The court approves, rejects or asks for more, and may hold a hearing where agreement is not reached, adding a £259 fee. Source: gov.uk, as at July 2026, subject to change.

A worked example (illustration only). An elderly widower with advanced dementia made a will years ago leaving his estate to his brother, who has since died. He now lacks the capacity to make a new one. His daughter, acting as his deputy, applies to the Court of Protection for a statutory will so his estate can instead pass to his grandchildren. She files the COP1, COP1C, COP24 and COP3 forms with the £421 fee (gov.uk, as at July 2026, subject to change). The court weighs his known wishes and family circumstances, and if the relatives agree it may decide without a hearing. Every case turns on its own facts, so this is general information rather than a guide to any real application.

Statutory will compared with the alternatives

A statutory will is one of several tools that deal with a person's affairs when capacity is in question, and it is not always the right one. A power of attorney is set up while someone still has capacity and covers decisions during their lifetime, not what happens on death. A statutory will is the route used once capacity has already been lost and a will is needed. The table below sets out where each fits.

ToolWhen it is usedWhat it covers
Statutory willAfter capacity to make a will is lostWhat happens to the estate on death, decided by the court
Ordinary willWhile the person still has capacityWhat happens to the estate on death, decided by the person
Lasting power of attorneySet up while capacity remainsFinances or health decisions during the person's lifetime
DeputyshipAfter capacity is lost, no attorney in placeOngoing decisions during the person's lifetime, via the court

General framework based on gov.uk, make a statutory will and gov.uk, power of attorney, as at July 2026, subject to change. For the difference between attorneys and deputies, see our guide to mental capacity.

Because these tools overlap, and because a statutory will application can be detailed and contested, many people choose to take advice before starting one. It can be worth discussing the position with a qualified professional, such as a solicitor or a STEP practitioner, who can consider the full circumstances. Our note on How to Write a Will covers the ordinary route for those who still have capacity.

Statutory wills in Scotland and Northern Ireland

This guide describes the law of England and Wales, where the Court of Protection and the Mental Capacity Act 2005 apply (legislation.gov.uk, as at July 2026). Scotland has a different system: adults with incapacity matters are dealt with under separate Scottish legislation and the Office of the Public Guardian (Scotland), and the statutory will procedure does not apply in the same way. Northern Ireland has its own capacity framework as well. Where a person or their estate connects to more than one UK nation, it can be worth taking advice in each.

Frequently asked questions

What is a statutory will?

A statutory will is a will made by the Court of Protection for someone who lacks the mental capacity to make one themselves. Rather than being signed by that person, it is authorised by the court after it decides what is in their best interests under the Mental Capacity Act 2005 (legislation.gov.uk, as at July 2026). It applies in England and Wales.

How much does a statutory will cost?

The Court of Protection application fee is £421, with a further £259 if the court holds a hearing (gov.uk, as at July 2026, subject to change). Legal and medical fees are usually on top. Help with fees may be available where the person has low or no income, so the total varies widely with the case and any advice taken.

Who can apply for a statutory will?

Anyone with a proper interest may apply, though some applicants need the court's permission first. Applications often come from a deputy, an attorney under a registered power of attorney, a close relative, or someone who would benefit under a current or proposed will (gov.uk, as at July 2026, subject to change). The court controls who may proceed in each case.

Can a statutory will be used to reduce inheritance tax?

The court may take tax into account, but its overriding duty is to act in the person's best interests, not simply to cut a tax bill (legislation.gov.uk, Mental Capacity Act 2005 s.4, as at July 2026). Tax planning can form part of the picture where it fits their wishes and circumstances, but it cannot be the sole driver. Many people take professional advice before raising it in an application.

How long does a statutory will application take?

There is no fixed timescale, and it depends heavily on whether the people served agree. An uncontested application can move faster, while a disputed one may need a hearing and take considerably longer (gov.uk, as at July 2026, subject to change). Because timing varies so much, it can be worth discussing realistic expectations with a qualified professional at the outset.

Is a statutory will different in Scotland?

Yes. The Court of Protection and the Mental Capacity Act 2005 apply in England and Wales (legislation.gov.uk, as at July 2026). Scotland handles adults with incapacity under separate legislation and its own Office of the Public Guardian, and Northern Ireland has a distinct framework. Where the person or estate touches more than one nation, taking advice in each can help avoid gaps.

About Fairchild Oldfield

The Fairchild Oldfield team brings together estate planning, tax, independent financial advice and client care, working with families across England and Wales.

Fairchild Oldfield are estate planning specialists and will writers, not a firm of solicitors. This article is general information based on practical experience, not legal, tax or financial advice.

Important: This article is general information only and is not legal, tax or financial advice. Reading it does not create a professional relationship. It is based on the law of England and Wales, and other UK jurisdictions may differ. Figures and rules are current as at July 2026 and are subject to change. Before acting, many people choose to seek advice from a suitably qualified professional, such as a solicitor, a STEP practitioner, an accountant, or an FCA-authorised financial adviser, who can consider the full circumstances.

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