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Statutory Wills: the Court’s approach


This blog summarises the Court of Protection’s ability to execute a will on behalf of a person who lacks sufficient capacity to make a will for themselves (referred to as a statutory will).

It also looks at the factors which the Court considers when deciding whether or not a will should be executed and if so, the provisions is should contain.

The Mental Capacity Act 2005

The Mental Capacity Act 2005 (“the Act”) provides the legal framework for dealing with matters when a person has lost mental capacity. As defined by the Act “a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain” (Section 2(1)).

Under the Act, the Court of Protection is provided with the power to make decisions on behalf of people who lack capacity to make those decisions themselves. This specifically includes the ability to order that a will be executed for a person who lacks sufficient mental capacity to do so.

The important principles which should always be referred to when considering whether an act or decision should be made in accordance with the Act are set out in Section 1. These include:

The Court is most likely to execute a statutory will in two types of situations. Firstly, if the person who lacks capacity has never executed a will or, secondly, where they have previously executed a will but there has since been a significant change in that person’s circumstances meaning that it would be appropriate to reconsider the provisions of their previous will.

A statutory will takes effect in the same way as if the person had executed a valid will themselves and in making a statutory will, the Court may make any provision that the person could have made themselves if they had sufficient capacity.

Before the Act came into force in 2007, the Court used a process of ‘substituted judgement’ when deciding what a statutory will should contain (i.e. doing what the Court believed the person would do or want to do if they had a brief lucid period). Under the Act however, the Court now has to consider the person’s best interests. The Act provides a checklist of factors in section 4 that should be taken into account when deciding what is in person’s best interests. In addition to the views of others, under section 4(6), the Court, when considering the execution of a will for P, must consider the following (so far as they are reasonably ascertainable):

The Court’s approach

The recent judgment of Judge Behrens in the case of Re NT v FS and Others [2013] EWHC 684 (COP), provided a useful summary of the legislation and case law in relation to statutory wills. The details of the case itself is the subject of another blog on this website by Lynsey Harrison, the head of Clarion’s Disputed Wills and Trust team, who represented a number of the parties in the case.

Drawing on the decisions of four leading cases in relation to statutory wills, Judge Behrens summarised the approach taken by the Court in making decisions under the Act and ascertaining what was in a person’s best interests. Firstly, he noted that under the Act, the overarching principle that a decision made on behalf of a person who lacks capacity must be in that person’s best interests requires the Court to apply an objective test; not a ‘substituted judgment’.

Secondly, that the Court must follow the structured decision-making process laid down by the Act, considering all relevant circumstances and factors set out in section 4. Having done so, the Court must then make a value judgment that gives effect to the overarching principle that the decision must be in the person’s best interests.

Thirdly, that the Act does not establish a hierarchy among the various factors to be considered. The weight attached to the various factors differs according to the individual circumstances of the case. However, in a particular case, there may be one or more factors which have “magnetic importance” in influencing or even determining the outcome.

Fourthly, that when evaluating all the factors to determine what is in the person’s best interests, whilst the person’s wishes and feeling should be given great weight; there is no presumption that those wishes should be implemented. The weight to attach to the person’s wishes and feelings will always depend on the specific case and its facts. In some cases, they may carry very little weight and in others, they may have substantial weight.

Finally, he noted that differing views have been expressed in previous cases of what importance the Court should attach to the person being remembered by as having “done the right thing” by his will, when weighing up all the factors. Within his judgment, Judge Behrens held that that the determination of the person’s best interests did not, on the facts of Re NT v FS and Others, require any weight to be attached to whether the person would be remembered as having done the right thing. The reasons for this were that it was the Court determining the provisions of the will and not the person themselves. He also noted that, where there is a dispute between family members about how they might benefit from the person’s estate, those who were unsuccessful were unlikely to think that person had done the right thing in any event.

It therefore appears relatively well settled that, in considering whether a decision is in the person’s best interests, the person’s past and present wishes and feelings will always be a significant factor. The weight attached by the Court to these wishes and feelings will however vary according to the circumstances of the particular case. How the person should be remembered, however, seems less settled and there is a clear divergence of opinion within the Court.

If you have a relative who lacks capacity and you believe a statutory will would be appropriate, of if you have any other issues relating to the Court of Protection or contentious probate generally, please feel free to contact a member of the Disputed Wills and Trusts Team on 0113 246 0622.

Disclaimer: Anything posted on this blog is for general information only and is not intended to provide legal advice on any general or specific matter. Please refer to our terms and conditions for further information. Please contact the author of the blog if you would like to discuss the issues raised.