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Statutory Wills & Gifts UK: Court of Protection Guide

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Part ofCourt of Protection UK

Written by Brad Askew Solicitor (non-practising)
Brad is on the roll of solicitors of England & Wales but does not hold a practising certificate and does not provide legal advice.
Updated June 2026 · England & Wales
When someone lacks the mental capacity to manage their own financial affairs, a close family member, attorney or deputy may need to ask the Court of Protection to step in and make certain decisions for them. That can include writing a statutory will, making a gift of money or property, or setting up a settlement. These applications are technical, and the Court expects them to be prepared carefully. This guide walks through the process at a practical level: which forms matter, why the Official Solicitor is usually involved, how costs tend to work, and what trips people up. It is written for family members, attorneys and deputies who want to understand the shape of the process before they start, so you can move forward with a clearer picture of what lies ahead.

What this document is

A statutory will is a will made on behalf of someone who no longer has the mental capacity to make one themselves. Gifts and settlements follow a similar logic: because the protected person cannot consent, the Court of Protection must authorise any significant decision about their property.

This is different from day-to-day spending a deputy or attorney already has power to handle under a Lasting Power of Attorney or a property and affairs deputyship order. Large or unusual financial steps, such as rewriting a will, transferring a house, or gifting a substantial sum to a relative, normally fall outside those existing powers and need a fresh application.

The Court's job is to decide what is in the protected person's best interests, taking into account their past wishes, their current circumstances, family relationships, and the views of those who might reasonably be consulted. It is not a rubber-stamp process, and the Court will want to see clear evidence that the proposed decision is genuinely in the person's interests rather than the applicant's.

How to use this document

  1. Confirm the application route. Work out whether the decision actually needs a Court of Protection order. Routine financial management by a deputy or attorney may already be authorised. Statutory wills, substantial gifts, settlements and sales of property with tax planning implications usually do require a separate application, so check the scope of your existing authority first.
  2. Gather capacity evidence. The Court needs evidence that the person cannot make the specific decision in question, whether that is making a will, making a gift, or settling property. A COP3 assessment of capacity completed by a suitable professional is normally required. Capacity evidence from an earlier or unrelated application is generally not accepted, so fresh evidence tied to this decision is expected.
  3. Prepare the application forms. The main forms are the COP1 application, the COP1C annex for statutory wills, codicils, gifts and settlements, and the COP3 capacity assessment. Supporting documents typically include a draft of the proposed will or deed, details of the estate, family tree, tax position, and reasons explaining why the proposal is in the protected person's best interests.
  4. Engage with the Official Solicitor. The Court will usually join the protected person as a party and invite the Official Solicitor to act as their litigation friend. Contact the Official Solicitor's office early to discuss the proposal. Their involvement provides independent protection for the person, and their costs are normally met from the protected person's estate rather than by the applicant personally.
  5. Pay the fees and file the application. An application fee applies, and further hearing fees may be charged if the case goes to a hearing. Check gov.uk for current Court of Protection fees before paying. Costs in property and affairs cases are usually paid out of the protected person's estate, though the Court can order a different arrangement if it considers that fair.

Common questions

If you're dealing with this kind of situation, speak to an experienced legal adviser who can walk you through it — from £89.

Common questions

Q Who can apply for a statutory will or gift order?
Typically a deputy, an attorney under a registered Lasting or Enduring Power of Attorney, a close family member, or someone with a genuine interest in the protected person's welfare or estate. If you are not already authorised to act, you may need the Court's permission to bring the application. The Court expects applicants to act in the protected person's best interests, not their own.
Q Why does the Official Solicitor get involved?
The Official Solicitor often acts as litigation friend for the protected person, ensuring their interests are independently represented in the proceedings. This matters because the person cannot speak for themselves. The Official Solicitor will review the proposal, ask questions, and make submissions to the Court. Their costs are normally paid from the protected person's estate rather than by the applicant.
Q How long does a statutory will application take?
Timeframes vary significantly depending on the complexity of the estate, whether family members object, and the Court's current workload. Straightforward, uncontested applications can take several months. Contested cases, or those involving unusual assets or tax issues, can take considerably longer. Starting early, and preparing thorough supporting evidence, tends to reduce delay.
Q Who pays the legal costs of the application?
In property and affairs cases, costs are generally paid from the protected person's estate. This usually includes the Court fees, the Official Solicitor's costs, and the applicant's reasonable legal costs. The Court retains discretion to depart from that general rule, for example where an applicant has behaved unreasonably or pursued a proposal that was not in the person's interests.
Q Do I need a new capacity assessment for each application?
In most cases, yes. Capacity is decision-specific, so evidence that someone cannot manage their property generally does not, on its own, prove they cannot make a will or a particular gift. The Court usually expects a COP3 capacity assessment that addresses the specific decision being asked of it, rather than relying on an older general assessment.
Q Can I make a large gift without a Court order?
Attorneys and deputies have limited powers to make gifts, typically only small customary gifts on occasions such as birthdays or at a scale reasonable given the estate. Larger gifts, gifts for tax planning, or transfers of property usually fall outside those powers and require a Court of Protection order. Making unauthorised gifts can lead to personal liability and removal from the role.
Q What happens if family members disagree with the proposal?
The Court will usually notify close relatives and other interested parties, who can respond and raise objections. A contested application may involve directions hearings, witness statements, and potentially a final hearing. The Court weighs the views of family members alongside the protected person's past wishes and current best interests before deciding what to order.
If you're dealing with this kind of situation, speak to an experienced legal adviser who can walk you through it — from £89.

Sources

This guide is based on primary UK law and official guidance.

Brad Askew, Solicitor (non-practising)

Written & reviewed by

Brad Askew Solicitor (non-practising)

Brad is on the roll of solicitors of England & Wales but does not hold a practising certificate and does not provide legal advice. LegalDocuments.co.uk is not a law firm and does not provide regulated legal advice.

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Legal disclaimer
This article is for general information only. It is a tool to help you find your way — not legal advice, and not a substitute for speaking to a qualified adviser about your situation.