Statutory Wills—Court of Protection applications
Statutory Wills—Court of Protection applications

The following Private Client guidance note provides comprehensive and up to date legal information covering:

  • Statutory Wills—Court of Protection applications
  • What is a statutory Will?
  • Effect of a statutory Will
  • When is a statutory Will application appropriate?
  • The Will's provisions
  • Application for a statutory Will
  • Subsequent procedure
  • Execution and safe custody of a statutory Will

What is a statutory Will?

Where a person is incapable of making a valid Will for themselves, the Court of Protection has the power under the Mental Capacity Act 2005 (MCA 2005) to direct that a Will should be executed on their behalf. Such Wills are often referred to as statutory Wills, although this phrase is not used in the MCA 2005. A statutory Will may make any provision which could be made by a Will executed by P if they had capacity to execute it themselves.

Prior to the coming into force of MCA 2005, the court's power to direct that a Will be executed on behalf of a person lacking testamentary capacity (P) came from the Mental Health Acts of 1959 and 1983. Similar to the current power under MCA 2005, this power enabled the Will to contain 'any provision which could be made by a Will executed by the patient if he were not mentally disordered'. The main difference between the current approach and the former approach is the court's approach to assessing what the Will should contain. While under the old rules, the court applied a test of substituted judgment (ie what P would have done if he had a lucid moment), MCA 2005 looks at the best interests of P. Further discussion of the best