The protected person’s deputy sought authority for making a statutory will for her. An earlier Enduring Power had been found to be a forgery, and a later will was also doubted. The deputy had been appointed. A statutory will had been refused because the master said one was appropriate only where no will existed, and it was not a procedure to be used to challenge existing wills for doubt as to capacity or undue influence.
Held: The application succeeded: ‘Under section 4 (6)(a), one of the relevant factors to be considered by the Court in determining the protected person’s best interests are that person’s past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity). A previous will is obviously a relevant written statement which falls to be taken into account by the Court. But the weight to be given to it will depend upon the circumstances under which it was prepared; and if it were clearly to be demonstrated that it was made at a time when the protected person lacked capacity, no weight at all should be accorded to it. Moreover, Parliament has rejected the ‘substituted judgment’ test in favour of the objective test as to what would be in the protected person’s best interests. Given the importance attached by the Court to the protected person being remembered for having done the ‘right thing’ by his will, it is open to the Court, in an appropriate case, to decide that the ‘right thing’ to do, in the protected person’s best interests, is to order the execution of a statutory will, rather than to leave him to be remembered for having bequeathed a contentious probate dispute to his relatives and the beneficiaries named in a disputed will. ‘
Hodge QC J
[2010] EWHC 2159 (Ch), [2011] 1 All ER 859, [2010] WTLR 1511
Bailii
Mental Capacity Act 2005 4(6)(a)
England and Wales
Citing:
Cited – In re P (Statutory Will) ChD 9-Feb-2009
A request was made for a statutory will.
Held: The 2005 Act marked a radical departure from previous practice. A decision made on behalf of a protected person must be made in his best interests. That was not (necessarily) the same as inquiring . .
Cited – In re M; ITW v Z and Others (Statutory Will) FD 12-Oct-2009
The court considered a request for a statutory will under the 2005 Act.
Held: the Court of Protection has no jurisdiction to rule on the validity of any will. However, Munby J made three points: (1) that the 2005 Act laid down no hierarchy as . .
Lists of cited by and citing cases may be incomplete.
Health, Wills and Probate
Updated: 10 November 2021; Ref: scu.421525