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 what the protected person would have decided if he or she had had capacity. Best interests was not a test of ‘substituted judgment’ (what the person would have wanted), but rather required a determination to be made by applying an objective test as to what would be in the protected person’s best interests. Having followed a structured decision-making process, the Court must then form a value judgement of its own, giving effect to the paramount statutory instruction that any decision must be made in the protected person’s best interests. A protected person’s expressed wishes should not be lightly overridden, since adult autonomy is an important part of the overall picture. But what will live on after the protected person’s death is his memory; and for many people it is in their best interests that they should be remembered with affection by their family, and as having done ‘the right thing’ by their will. The decision maker is entitled to take into account, in assessing what is in the protected person’s best interests, how he would be remembered after his death.

Judges:

Lewison J

Citations:

[2009] EWHC 163 (Ch), [2010] EWHC 1592 (COP), [2010] Ch 33, [2009] NPC 24, [2009] WTLR 651, [2009] LS Law Medical 264, [2009] 2 All ER 1198, [2010] 2 WLR 253

Links:

Bailii, Bailii

Statutes:

Mental Capacity Act 2005

Jurisdiction:

England and Wales

Cited by:

ApprovedIn 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 . .
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 . .
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.

Wills and Probate, Health

Updated: 27 October 2022; Ref: scu.281710