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Statutory Wills

Document Cited authorities 3 Cited in Related
Vincent
AuthorNasreen Pearce
Pages229-234

Chapter 16

Statutory Wills

16.1 INTRODUCTION

The preceding chapters show that at common law, where a will is duly executed by a person who is aged 18 or over (or who is making a privileged will; see para 2.2) and the will appears rational on the face of it, the presumption is that the testator/testatrix had testamentary capacity unless a real doubt is raised as to capacity. Where the will is challenged on the basis that the testator/testatrix lacked testamentary capacity, the burden of rebutting the presumption falls on the person who seeks to assert lack of testamentary capacity. Section 1(2) of the MCA 2005 confirms this position by providing that a person must be assumed to have capacity unless it is established that he/she lacks capacity. The burden thus remains on the party who challenges capacity to establish lack of capacity.

If, therefore, there is real doubt about the testator’s/testatrix’s capacity, it is advisable to seek a determination on this issue by making an application to the Court of Protection under the provisions of the MCA 2005. If lack of capacity is established, it is advisable to ask the court to make a will on behalf of the testator/testatrix. However, it should be understood that an individual may be held to lack capacity to manage and administer his/her property and affairs, but may still have capacity to make a valid will. The Court of Protection will therefore require primary medical evidence confirming that the person lacking authority, P
(P), does not have testamentary capacity, applying the test set out in Banks v Goodfellow (1870) LR 5 QB 549 (see Chapter 4) and not the test under the MCA 2005. The medical practitioner who is instructed to provide the medical evidence of testamentary capacity should be provided with the appropriate information on the test to be applied, and on the nature and extent of the assets and any other relevant issues that the person being assessed would require to consider if he/she had capacity to make a will.

230 A Practitioner’s Guide to Probate Disputes

16.2 COURT’S STATUTORY POWERS TO MAKE A STATUTORY WILL

The court’s power to make a statutory will is now governed by sections 16(2)(a) and 18(1)(i) of the MCA 2005. Section 16(2)(a) provides that the court may, by making an order, make the decision or decisions on behalf of P in relation to the matter or matters, and section 18(1)(i) extends the court’s powers to enable it to execute a will on P’s behalf.

The approach which the court should adopt under the MCA 2005 was set out in Re P [2009] EWHC 163 (COP), with the emphasis being on ‘the overarching principle that any decision made on behalf of P must be in P’s best interests’ and ‘the goal of the inquiry is not what P “might be expected” to have done; but what is in P’s best interests’. This is more...

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