Court of Protection Decides on Statutory Wills

In the recent case of Re D the Court of Protection considered what principles should be applied in determining whether it could order the execution of a statutory will for and on behalf of a person who had lacked testamentary capacity.

The main point that arises out of the decision is that the Court of Protection can authorise a statutory will (a will written by the Court) on the grounds that the validity of an earlier will is in dispute. The Mental Capacity Act 2005 works on the overriding principle that any decision taken on behalf of a mentally incapacitated adult must be taken in his or her best interests. Previous cases have decided that a person’s ‘best interests’ include being remembered for having done the ‘right thing’ in his or her will.

In Re D his Honour Judge Hodge QC was of the view the ‘right thing’, in this particular case, meant ensuring Mrs D’s memory was not "tainted by the bitterness of a contested probate dispute between her children". Academics are appreciating the decision as it has been acknowledged that contested probate disputes can cause stress and damage to familial relationships.

However this approach will not be appropriate in all cases. In this case the Court had overturned two wills which, on the face of them, appeared to have been validly executed (although there were grounds for questioning their validity that were not fully explored). The decision to authorise a statutory will was aided by the fact Mrs D’s children, her deputy and the Official Solicitor all agreed on the terms of the statutory will.

It is therefore unclear at the moment as to whether the court would have come to the same conclusion in a case where the parties disagree over the terms of the statutory will. In all likelihood a full investigation into the facts of each case will be conducted before the Court decides to substitute its own interpretation of the ‘right thing to do’ for an individual’s testamentary wishes, even with the existence of suspicious circumstances surrounding the execution of a will.

Robin Gambles

Published on 06/10/2010