Statutory Wills: losing mental capacity without a Will

Making a Will when someone lacks mental capacity

A statutory Will is a Will approved by the Court of Protection, for a person that loses capacity and is no longer able to make or change a Will.

Family members, attorneys, or deputies cannot make a Will themselves without the court’s permission, this is when an application can be made to the Court of Protection.

When might a statutory Will be needed?

A statutory Will may be helpful when circumstances have changed:

• The person never made a Will
• The value of their estate has gone up or down
• They have received a large compensation payment
• Changes are needed for tax planning purposes
• Someone named in the existing Will has died

How does the Court decide what the will should say?

When deciding what a statutory Will should include, the court focuses on what is fair and in the person’s best interests.

It will try to involve the person as much as possible and may consider:

• What they said or wrote in the past
• Their personal values and beliefs
• How they lived their life and what mattered to them
• What they would likely have decided if they were able to do so themselves

The aim is to create a Will that reflects the person’s wishes as closely as possible.

What happens if someone dies without a Will?

If a person dies without a valid Will, the law decides what happens to their money, property and belongings. This is known as the rules of intestacy.

These rules follow a strict order and don’t take personal relationships into account. For example, unmarried partners do not automatically inherit, no matter how long they have lived together.

While it may be possible to challenge the situation, this often involves high costs, long delays, and emotional stress. Sometimes, the outcome is not what the person who died would have wanted.

The National Wills Report 2025 shows that only 37% of adults in the UK have made a Will. Although this figure jumps to 56% for those over the age of 55, it shows a worrying trend in the amount of people who need to think about making plans for the people they care about.

It is also important to ensure your Will is up to date. Over time, people’s lives and relationships change — and their Will may no longer match their wishes.

A Will may need changing because:

• A relationship ends
• Someone named in the Will dies
• The finances or circumstances change
• Marriage, divorce, or remarriage
• Children or grandchildren are born

If a Will isn’t updated, it can lead to unexpected results — such as a former partner inheriting, or new family members being left out. Checking your Will regularly helps ensure your wishes are properly followed.

How can Morr & Co help?

If you have any questions or would like any further information on the content of this article, please do not hesitate to contact Morr & Co’s Court of Protection team on 01737 854 500 or email info@morrlaw.com

Disclaimer
Although correct at the time of publication, the contents of this newsletter/blog are intended for general information purposes only and shall not be deemed to be, or constitute, legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article. Please contact us for the latest legal position.