Statutory Wills—Court of Protection applications

The following Private Client practice 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?
  • Possible alternative solution of statutory settlement for minors
  • The Will's provisions
  • Application for a statutory Will
  • Assessment of testamentary capacity
  • Permission to make the application
  • The application form
  • More...

Statutory Wills—Court of Protection applications

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.

The Court of Protection can only order the execution of a statutory Will on behalf of a person who is aged 18 or over and who lacks testamentary capacity. For guidance on testamentary capacity, see Practice Note: Capacity to make or revoke a Will.

Only the court has the power to execute a Will on behalf of P. So, for example, a person cannot delegate the power to make their Will to their attorney, nor can a deputy decide the provisions of a Will or execute it on behalf of P.

Effect of a statutory Will

Any Will executed pursuant to the court's power will have the same effect as if it had been signed by P themselves.

However, while the Will has the effect of having been executed by P, it will not apply to:

  1. immovable property out

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