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 between the various factors listed in section 4 which had to be borne in mind, beyond the overarching principle that what was determinative was the judicial evaluation of what was in the protected person’s ‘best interests’; (2) that the weight to be attached to the various factors would, inevitably, differ depending upon the individual circumstances of the particular case; and (3) that in any particular case, there might be one or more features or factors which were of ‘magnetic importance’ in influencing or even determining the outcome.
He went on to say that the protected person’s wishes and feelings would always be a significant factor to which the Court must pay close regard; the weight to be attached to the protected person’s wishes and feelings would always be case-specific and fact-specific; and in considering the weight and importance to be attached to the protected person’s wishes and feelings, the Court must of course, and as required by section 4(2) of the 2005 Act, have regard to all the relevant circumstances, including (but not limited to) (a) the degree of the protected person’s incapacity; (b) the strength and consistency of the views being expressed by the protected person; (c) the possible impact on the protected person of knowledge that her wishes and feelings were not been given effect to; (d) the extent to which the protected person’s wishes and feelings were, or were not, rational, sensible, responsible, and pragmatically capable of sensible implementation in the particular circumstances; and (e) crucially, the extent to which the protected person’s wishes and feelings, if given effect to, could properly be accommodated within the Court’s overall assessment of what was in his best interests.


Munby J


[2009] EWHC 2525 (Fam), (2009) 12 CCL Rep 635, [2009] WTLR 1791, [2011] 1 WLR 344




Mental Capacity Act 2005 4(2)


England and Wales


ApprovedIn 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 by:

CitedIn Re D (Statutory Will); VAC v JAD and Others ChD 16-Aug-2010
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 . .
CitedG v E and Others CoP 26-Mar-2010
E Was born with and still suffered severe learning difficulties. The court was asked as to the extent of his capacity to make decisions, and as to where he should live, with a family member, the carer or with the local authority, which had removed . .
CitedNT v FS and Others CoP 26-Mar-2013
An application was made for a statutory will for the patient. The court considered how it should approach competing suggestions as to the provisions to be included.
Held: The 2005 Act had changed the basis for such wills fundamentally. The . .
Lists of cited by and citing cases may be incomplete.

Health, Wills and Probate

Updated: 09 July 2022; Ref: scu.377902