A recent case saw the law surrounding statutory wills examined.
A statutory will is a will made on behalf of someone who lacks the necessary capacity to do so themselves by application to the Court of Protection.
In the case of Re D (statutory will), the Court of Protection considered what principles should be applied in determining whether to order the execution of a statutory will for and on behalf of a person who lacked the mental testamentary capacity to do so.
The Court of Protection held that under the Mental Capacity Act it can authorise a statutory will on the grounds that the validity of an earlier will is in dispute. Decisions taken on behalf of a mentally incapacitated adult must be taken in his or her best interests. This can include being remembered for having done the 'right thing' in his or her will. In this case the judge ruled that the 'right thing' meant ensuring Mrs D's memory was not 'tainted by the bitterness of a contested probate dispute between her children'.
Comment
It is heartening to see the Court taking such a practical (and sensitive) approach. The alternative would have been for the beneficiaries to have waited until Mrs D had died and to then contest her will in the courts. This would have been far more stressful and expensive and would almost certainly not have been what Mrs D would have wanted.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
