Statutory Wills: How the process works and why they can protect loved ones

April 2, 2026

A Statutory Will is a Will authorised by the Court of Protection for an individual who lacks the mental capacity to create or amend a Will themselves.

Understanding what it means to lose mental capacity

When stating that a person has lost mental capacity, it refers to a situation where a person is no longer able to make a particular decision for themselves. A person is considered unable to make a decision if they cannot do one or more of the following:

  • Understand the relevant information they need in order to make the decision
  • Retain that information for long enough to consider it properly
  • Use or weigh up that information as part of the decision-making process
  • Communicate their choice, whether by speaking, writing, signing, or any other means
Who decides whether a person has lost mental capacity?

The person who carries out mental capacity is called an assessor. The assessor can be a health care professional, family member, care worker, social worker or care service manager. There are circumstances where an opinion of a medical practitioner or professional is required. The Court require the completion of a specific capacity form completed by a medical practitioner to confirm that the patient does not have testamentary capacity.

The assessment is a two-stage approach.

Stage 1: Medical assessment of the patient’s brain and the functioning thereof.

Stage 2: If stage 1 shows impairment or disturbance, the assessor must then determine whether it affects the person’s ability to make the specific decision in question.

Function of Statutory Wills

A Statutory Will ensures that the person’s estate is arranged in a way that properly reflects their circumstances and best interests, rather than leaving matters to the strict and often unsuitable rules of intestacy.

Creation and process of Statutory Wills

The process typically begins when a family member, attorney, deputy, or solicitor recognises that the individual either has no valid Will or that an existing Will is outdated. As the individual is unable to give instructions, the applicant must collect all relevant evidence, including medical assessments confirming a lack of testamentary capacity, financial information, previous testamentary documents, and details of personal relationships and likely wishes.

This information is submitted to the Court of Protection, who must be satisfied that any proposed Statutory Will is genuinely in the individual’s best interests. All persons who may be affected, such as relatives, partners, or potential beneficiaries, are notified and given an opportunity to comment or be joined to the proceedings to, potentially, object. This ensures transparency and allows the court to fully understand family dynamics, personal connections, and any other competing considerations.

A solicitor prepares a draft Will that reflects the individual’s values, relationships, and practical needs. The Court of Protection reviews all evidence, and any representations made. Once the court is satisfied that the proposal is appropriate, the Statutory Will is formally approved and becomes legally valid. It then governs the distribution of the individual’s estate upon their death.

Advantages of Having a Statutory Will

Preventing unfair outcomes under intestacy

Intestacy follows a rigid hierarchy that does not reflect personal circumstances. This can produce unintended results.

Example: A man lives with his partner for 20 years, sharing a home and finances. He lacks capacity and dies without a Will. Under intestacy, his partner receives nothing. Instead, the entire estate passes to his adult children, who may have had limited involvement in his life. The partner may even lose her home. A Statutory Will prevents such outcomes by enabling proper provision for those who genuinely formed part of the individual’s life.

Protecting cohabiting partners

Cohabiting partners, no matter how long the relationship, have no automatic entitlement under intestacy. Without a Statutory Will, a surviving partner may be left without financial security or the right to remain in the shared property. A Statutory Will can ensure appropriate protection and stability.

Reflecting genuine family relationships

Modern families often include step-children, long-term carers, or supportive friends who would not inherit under intestacy.

A Statutory Will enables the court to acknowledge these important relationships and provide for those who played a meaningful role in the individual’s life.

Reducing the likelihood of disputes

Because the Statutory Will is approved through a transparent court process, it carries significant authority. This reduces the risk of disagreements, challenges, or litigation after the individual’s death, protecting family relationships and preventing costly conflict.

Allowing tax-efficient planning

A Statutory Will can be drafted in a way that reduces unnecessary inheritance tax liabilities. Intestacy makes no such allowances, meaning tax may be paid that could have been avoided. A Statutory Will therefore help preserve more of the estate for intended beneficiaries.

Conclusion

Any decisions made for someone who lacks mental capacity and the decision-making process itself must always be in the best interests of the patient. Creating a Statutory Will significantly decreases the challenges of intestacy protecting family members and beneficiaries avoiding unnecessary delays and possible litigation.

To discuss the topics raised within this article, please contact us to speak to a member of our Private Wealth and Inheritance Team.

Graeme Black
Partner, Private Wealth & Inheritance
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This reflects the law and market position at the date of publication and is written as a general guide. It does not contain definitive legal advice, which should be sought in relation to a specific matter.

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