Can a person without capacity make a Will

Wills & Probate

Get in touch

If you need legal advice, fill out the form below and one of our legal experts will get back to you as soon as possible.

Writing a Will without Mental Capacity – Statutory Will

What is a Statutory Will?

The law states you must have the mental capacity to write a will. However, the Court of Protection can authorise a Statutory Will for someone who has lost the capacity to write a Will themself.

A statutory Will is a Will that is created and approved by the Court of Protection on behalf of a person who lacks capacity either through physical or mental illness, learning disability or brain damage.  

What reasons are there to make a statutory Will?

There are many reasons to make a statutory will:

  • An existing will required to be changed due to the circumstances of the incapacitated person.
  • The person who is incapacitated has not previously made a Will
  • If a beneficiary under an existing Will has passed away
  • A change in the relationship of the incapacitated person
  • Their estate has dramatically increased or reduced in value

How to apply for a Statutory Will?

When making a statutory Will on behalf of someone, you need to consider the incapacitated persons best interests.

Things to consider are:

  • If the person can express any wishes and feelings, they should still be considered.
  • If there is a Will to present or in the past
  • The person’s beliefs and values

A doctor’s report is required to confirm the person lacks capacity. Once a doctor and solicitor have advised a statutory Will is needed you can start the application to the Court of Protection.

You will need to fill out forms with supporting documents; the forms include:

  • An application form – COP1
  • A Witness statement – COP24
  • An information form – COP1C
  • An assessment for capacity form – COP3

Do you need help?

Our solicitors are here to help, if you want to make a statutory Will for a loved one who lacks capacity contact us today on 0161 798 9000.