Statutory Wills: A barrister explains

By Ruth Hughes KC, 22nd April 2025

Editorial note: We commissioned this blog post due to the interest in statutory wills generated by the case of W v P [2025] EWCOP 11(T3) which was heard in private. The blog author acted for the P in that case, instructed by the Official Solicitor.  We have also subsequently published a blog post about a public hearing relating to a statutory will (“Judge approves statutory will in contested hearing”). This post by Ruth Hughes KC sets out the legal framework for statutory wills.

1. Where an adult P lacks mental capacity to make a will the Court has jurisdiction to authorise the execution of a will on P’s behalf: see section 18(1)(i) of the Mental Capacity Act 2005 (“MCA”).  The Court will authorise a will if to do so would be in P’s best interests in accordance with section 4 MCA. 
2. Best interests in the context of testamentary and lifetime giving were discussed in three important cases following the coming into force of the MCA: (i) Re P [2010] Ch 33 [2009] EWHC 163 (Ch), a decision of Lewison J (as he then was) concerning the using of a will to change the terms of a pre-existing trust; (ii) Re M [2011] 1 WLR 344 [2009] EWHC 2525 (Fam) – a case where P had been the subject of undue influence by a bad Samaritan neighbour, a decision of Munby J; and (iii) Re G(TJ) [2010] COPLR Con Vol 403 [2010] EWHC 3005, a decision of Morgan J. The latter case in fact actually concerned the authorisation of gifts to be made by P rather than a statutory will.   

3. From these three early cases the following principles are established:

1. P’s best interests extend to after his death: Re P at [44];
2. P has an interest in being remembered for having “done the right thing” by his will: see Re P at [44].  However, circumstances of dispute among those close to P can make this concept tricky to apply: see Re G(TJ) [53].  Nevertheless, it can be more helpful when there is unity in the family.
3. It can be in P’s best interests to act altruistically: see Re G(TJ) [56];
4. The weight to be given to the factors relevant to each person’s best interests is case-specific.  There is no hierarchy of factors, although P’s wishes and feelings will always be significant and a factor to which the Court will pay close regard: see Re M [32] and [35]. 
5. In some cases, there will be a factor of “magnetic importance”: see Re M [32].
6. Although best interests is not a test of substituted judgement, (i.e. what P would have done if he or she had a lucid interval of capacity, which had been the test for a statutory will before the MCA: see Re D(J) [1982] 2 All ER 37), substituted judgement remains an element of the test: see Re G(TJ) [55]. 

4. As is plain from Morgan J’s judgment in Re G(TJ) the concept of doing the right thing can sometimes be tricky for the Court:

1. In Re Meek [2014] EWCOP 1 (a case in which the author acted for P, via her litigation friend the Official Solicitor) HHJ Hodge suggested with reference to the decision of Baroness Hale in Aintree University Hospitals NHS Foundation Trust v James [2013] UKSC 67 that “the right thing” was to be judged by reference to the standards of P herself. 
2. In Re J(C) [2012] WTLR 121; [2012] MHLO 35 Senior Judge Lush had difficulty with the concept of being remembered with affection or doing the right thing in that particular case.  He said at [54]

_{“JC has an appalling track record.  He has spent his entire lifetime doing precisely “the wrong thing” in his relationship with others, and his malevolence is such that he would probably relish the prospect of thwarting his children’s designs on his estate and would rejoice in being remembered by them with disaffection.  In any event, it would be unrealistic to expect him to undergo some sort of Damascus Road experience simply because he lacks capacity.”}   

5. A helpful summary of the case law can be found in District Judge Eldergill’s decision in Re Jones [2016] WTLR 661 [2014] EWCOP 59 from [59].  This case concerned a P who was intestate and had a history of extreme tax avoidance.  He had an estate of nearly £2.5m (in 2014).  P had a wife (of 40 years’ standing) and a child from a previous relationship. The daughter was adult and suffered from drug problems and was not financially secure.  The task of the Court was to decide whether to make a will in P’s best interests (or whether to leave the intestacy in place) and, if so, what form the statutory will should take.  The author represented P by his litigation friend the Official Solicitor, who almost invariably acts as litigation friend in statutory will cases. 

1. The Court did take into account that both the wife and P’s daughter would have standing to bring a claim after P’s death against his estate under the Inheritance (Provision for Family and Dependants) Act 1975 if reasonable financial provision had not been made for them on P’s death.  NB it can be in P’s best interests to avoid post-death litigation: see Re D [2010] EWHC 2159 (Ch). 
2. As for doing the right thing, this was an appropriate criterion for “most but not all people”: see [61]. 
3. “The onset of mental incapacity is not an opportunity for moral correction.”: see [67]. 
4. Nevertheless that still left room for the court to authorise a “[67] statutory will which makes good the omissions of P but does not seek to correct their considered acts and decisions.  For various reasons all of us never quite get round to doing many of the things we know we ought to do.  Making a will may be one of them.  Most people would wish to make a Will if they knew both that they were going to be incapacitated by a stroke tomorrow and the consequences of dying intestate or leaving a defective Will.  They would seek to avoid the sometimes arbitrary nature of intestacy, the consequences of dying intestate on those dear to them, the resulting inconvenience and worry for their family, the possibility of family discord and avoidable litigation arising from a failure to make clear their intentions.  [68] Thus, in the absence of clear evidence to the contrary, one is entitled to assume that had P given proper thought to their pending incapacity and intestacy he or she would have wanted to put their house in order and make a Will.  They would want to do the right thing and not to leave family members with such unintended consequences and problems.” 

6. Ultimately, District Judge Eldergill held that it was in P’s best interests for £625,000 of provision to be made for the daughter in the form of a lifetime gift (which was settled on trust to protect the daughter) and a legacy with the rest going to P’s wife.

7. In my experience statutory will proceedings are brought in order to:

1. deal with an intestacy which is not in P’s best interests;
2. deal with a substantial change of circumstances since P made a will;
3. prevent litigation after P’s death, particularly claims under the Inheritance (Provision for Family and Dependants) Act 1975 or that P’s will is invalid or defective in some way. 

8. It is rare for there to be a dispute as to the law to be applied in relation to a final statutory will application. 

9. Statutory wills can become urgent if P is dying and it is possible to obtain an interim statutory will (often called a holding will) under section 48 MCA.  Such a will is final if P dies with it in place.  The order authorising execution of a will is not sufficient: a will must actually be executed by the person authorised on P’s behalf prior to P’s death.  The form of execution is prescribed.  The Court will then seal the will.  Sealing can happen after death but must occur before an application for a grant of probate is made. 

10. The Court will make a will only for Ps who are habitually resident in England and Wales or have property here (in relation to that property only).  It will not make a will in respect of immoveable property outside England and Wales: see para 4(4)(a)(i) of Sch 2 to MCA.   

11. The Court has been willing to authorise settlements (i.e. trusts) of property for children under section 18(1)(h) MCA which have essentially testamentary effect to avoid an undesirable intestacy which is not in P’s best interests: see for example Re CJF [2019] COPLR 262 [2019] EWCOP 1 in which provision was made for effectively a foster family who had shown extraordinary kindness to P.  The author acted for P (via his litigation friend the Official Solicitor) in that case also.

12. As with all property and affairs cases, the usual rule on costs is that P bears the (assessed) costs of an application.

Ruth Hughes KC is a barrister at 5 Stone Buildings.  She has in-depth experience in all matters concerning property and affairs in the Court of Protection, including foreign issues and is also comfortable advising in relation to associated welfare issues.  She is frequently instructed by the Official Solicitor.