You can apply to the Court of Protection to make a will, or change one, for someone who is unable to do it themselves.
There must be a valid reason to make a statutory will for another person, such as dementia, a debilitating illness, or a serious brain injury. You can make a statutory will application if someone is unable to understand:
- What it means to make a will (or change one).
- The value of their wealth or what property they own.
- How the process of making or changing a will may affect people that they know (e.g. those mentioned in a will or those left out of it).
Note: You can make decisions on behalf of someone if they lost the mental capacity to manage their finances. In other cases, they may still have the ability to make their own will. As a rule, a solicitor can confirm it.
Applying to Make a Will for Someone Else
There are four steps to the procedure of making a statutory will on behalf of another person who is incapable of doing so themselves:
1. Download and then return all the forms after filling them in. You need to add the details of the proposed will and supply any supporting documents.
- Form COP1: Apply to make decisions on someone’s behalf.
- Form COP24: Give a witness statement about a person who lacks capacity.
- Form COP1C: Apply to make decisions on someone’s behalf (finances).
2. Inform (serve) certain people that you made an application (see below).
3. Attend a hearing if the Court of Protection needs to get more information.
4. Finalise the will by signing it, having it witnessed, and getting it ‘sealed’ at the Court of Protection.
Note: You must also prove to the Court of Protection that the person is incapable of making a will by themselves.
The person’s doctor (or a medical professional) will need to fill in the parts relevant to the health questions. Send all the completed forms along with any supporting documentation and the fee to the Court of Protection.
Court of Protection
PO Box 70185
First Avenue House
42-49 High Holborn
London C1A 9JA
Extra Information and Supporting Documents
The court will need to see proof of certain information and documents, including:
- A copy of the person’s current will if there is one and any codicils (amendments).
- A copy of the proposed new will (or codicil if you are changing it).
- A copy of any deputyship order.
- Some reasons for choosing the named beneficiaries (people named in the will).
- Details of the ‘executor’ (people who agree to distribute the will after the person dies).
- A copy of any registered lasting power of attorney or registered enduring power of attorney.
- The person’s family tree and address with extra details about where they are living (e.g. a care home or a hospital).
Other information you will need to provide includes:
- Details about the estate and assets of the person you are applying for.
- Some accounts that show the person’s estimated income and their outgoings.
- Details of any Inheritance Tax payable to HM Revenue and Customs in the event of the person’s death.
Mental Capacity Act Code of Practice
The court will want to know that you are acting in the other person’s best interest. Any decisions that you take on someone’s behalf must follow the code of practice under the Mental Capacity Act 2005.
As such, you must consider:
- What decisions the person would make if they were able to make a will themselves.
- The beliefs and the personal values of the person that you are applying for.
- How the person acted in the past when they were able to make decisions for themselves.
Further information is available in the Practice Direction 9E. It also contains an example of what a statutory will looks like.
Making an Emergency Application
In certain cases, the process allows you to make an urgent or emergency application to the Court of Protection. Making an emergency decision on a statutory will could be important if the life expectancy of the person you are applying for is short.
Note: It might be best to get legal advice if your case is a complex one. You would need to pay for a solicitor but organisations like the Citizens Advice Bureau are free.
Statutory Will Application Fees
The current cost of making a statutory will application is £371. In some cases, you may also need to pay:
- An extra £494 if the court decides to hold a hearing (it can also include a telephone hearing).
- Counsel’s fees (where applicable).
- Extra fees for a solicitor. It may be necessary if the Official Solicitor appoints a solicitor to act as a litigation friend.
Methods of Payment
You should make a cheque payable to ‘HM Courts and Tribunals Service’. Send it to the court with the completed forms and any supporting documents. The court will inform you if there are any additional costs to pay.
Note: It may be possible to claim back the fees from the estate of the person for whom you are applying.>
Getting an Exemption or a Refund
In some cases, there will be no need to pay an application fee or a hearing fee. It depends on the circumstances of the person (e.g. if they are claiming certain benefits or have little or no income). Use form COP44A to apply for a fee remission form and send it with your forms.
Note: They would refund the fee if the person dies within five (5) days of when the Court of Protection receives an application.
What Happens After an Application
You get confirmation from the Court of Protection when they receive the application. You also get a stamped copy along with a ‘directions order’. This is a document from the court that tells you what to do next.
Writing to the Official Solicitor
You may need to write to the Official Solicitor if the directions order says you must. They may need to know about an application for a statutory will on behalf of someone else.
The Official Solicitor has several roles. But, it would be to ensure that the person who cannot make decisions for themselves gets someone to represent them in a court case.
London WC2B 6EX
Serving Documents to People Named in the Application
The directions order also states who you must ‘serve’ or inform about the application. Besides the person you are applying for, it can also include:
- Anyone named in an existing will if the change would affect them ‘financially’. It may happen if they are not named as a beneficiary in the new will.
- Anyone who would have expected to benefit if the person died intestate (e.g. family members).
- Any other people named on the statutory will application and the Official Solicitor.
Once the application gets issued, you must serve these two documents within fourteen (14) days:
- Form COP15: Confirmation of proceedings (Court of Protection).
- Form COP5: Apply to be part of Court of Protection proceedings (‘acknowledgment of service’).
There are several ways to serve the documents, such as by email, fax, by post to their home address, or hand delivered in person.
Note: The court will allow you some time to try and reach a decision with the people you ‘served’. If that fails, the Court of Protection may decide to hold a hearing.
Court of Protection Decision
They will notify you of their decision, which may be that:
- They either approved (finalised) or rejected the application.
- They need more information from you (e.g. additional medical reports).
- They need to hold a hearing to get further information.
The Court Hearing
There will be an extra fee to pay if the Court of Protection decides to hold a hearing (or several hearings). As a rule, it would take place if you have been unable to reach a decision with all parties involved. It may be best to get a solicitor to re present you at a hearing.
Appealing a Decision
In most cases, the court will reach a decision without a hearing. You can ask for a reconsideration of their decision any time within 21 days of the decision.
You can download and fill in the Appellants Notice Form COP35 to appeal a decision made at a court hearing. The fee is £234. Applicants who get certain benefits or are on a low income can use ‘Form EX160: Apply for help with court and tribunal fees‘.
Fill in the ‘notice of appeal’ and send it to the Court of Protection within 21 days of the decision. Make the cheque payable to ‘HM Courts and Tribunals Service’ to cover the fees.
Court of Protection
PO Box 70185
First Avenue House
42-49 High Holborn
London WC1A 9JA
Finalising an Application for Statutory Will
If the court accepts your application they will send you a court order. The letter will confirm their acceptance and inform you of the next steps to finalise the will.
Signing the Statutory Will
You would need to sign two (2) copies of the statutory will. Sign both copies in your name and in the name of the person you made the will for. You would need two (2) witnesses who are at least 18 years old to sign them.
Both of the witnesses must be in your presence when you sign the will. They must also sign the will without delay after your signing.
You should then send the two signed copies of the statutory will to the Court of Protection. The copies will receive the court’s official seal and then get sent back to you.
Executing the Will when the Person Dies
A statutory will can be ‘executed’ or handled in the normal way, as if the person left a will themselves.