NT 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 court must decide what is objectively in the patient’s best interests, and not what the patient might have chosen themselves. The Act sets out the steps and considerations to be followed and these must be applied. Having applied that stuctured approach, the court must then check subjectively whether overall the result was in the patient’s best interests. The significance of the several elements will differ from case to case, but the Act gives none precedence. The views and wishes of the patient are included in the list, but have no priority over other considerations, and again the significance will reflect that particular case.
In this case a will signed by the patient, but not witnessed was helpful, but not of ‘magnetic’ importance.
Orders accordingly.
Behrens J
[2013] EWHC 684 (COP), [2013] EWCOP 684
Bailii, Bailii
Mental Capacity Act 2005 1(5) 4(2) 4(6) 4(7) 16 18(1)
England and Wales
CitedIn 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 . .
CitedIn 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 . .
CitedRe G(TJ) 2011
Morgan J did not think it a relevant consideration when setting the terms of a statutory will under the 2005 Act, that the patient should be remembered for having done the right thing. Under the new arrangements of the Act, the making of the gift . .
CitedRe J(C) CoP 2012
Lush J doubted that a proper consideration when setting the terms for a statutory will under the 2005 Act, would be the desirability of the deceased being remembered for having ‘done the right thing’ in his will. . .

These lists may be incomplete.
Updated: 17 February 2021; Ref: scu.472017