The Rise of Statutory Wills and the Limits of Best Interests Decision‐Making in Inheritance

Publication Date01 Nov 2015
AuthorRosie Harding
The Rise of Statutory Wills and the Limits of Best
Interests Decision-Making in Inheritance
Rosie Harding*
This article addresses ‘statutory wills’ executed under the Mental Capacity Act 2005 (MCA) for
persons with impaired mental capacity. The article provides an overview of the historical
development of statutory wills, before exploring their rising contemporary signif‌icance. It con-
siders the shift from the previous ‘hypothetical substituted judgment’ test to the contemporary
‘best interests’ orientation of the MCA. The article assesses the problems that the best interests
approach raises in this area, and its (in)compatibility with the right to equal recognition before the
pervasive reach of best interests in contemporary mental capacity law requires reconsideration.
The paper concludes by suggesting that a more limited framing of the power to execute statutory
wills is required in order to appropriately balance the rights of individuals with disabilities with
practical considerations around the distribution of assets on death.
Inheritance is a social and legal practice of profound signif‌icance. For many
people, having control over what happens to property after death is both socially
important and legally valuable.1In jurisdictions such as England and Wales,
where there is no ‘forced heirship’,2the ‘myth’ of testamentary freedom3persists
in spite of statutory provision for family dependants.4Within the bounds of this
legislative framework, the general principle is that adults in England and Wales
can choose who they wish to inherit their property when they die. Despite the
relative ease of making a valid will,5estimates from recent research by the Law
Commission suggest that half of deaths may be intestate.6Whilst the vast
majority of intestate estates fall to a surviving spouse, the intestacy rules also
provide a set of general principles for intestate succession, based on genetic
kinship. If there are no surviving blood relatives, and no will, the estate passes in
*Professor of Law and Society, Birmingham Law School, University of Birmingham. I am very grateful
for the extremely helpful comments of Mary Donnelly, Marie Fox, Daniel Monk, Elizabeth Peel, Antu
Sorainen, participants in the Mental Capacity Law stream at the SLSA Annual Conference (2014) and
the two anonymous reviewers for the MLR.
1 D. Monk and D. Hacker, ‘Wealth, Families and Death: Socio-Legal Perspectives on Wills and
Inheritance: Introduction’ (2014) 4 Oñati Socio-Legal Series 170.
2 In contrast to Scotland and much of continental Europe, where family members have an
entitlement to inherit specif‌ied proportions of the estate.
3 M. B. Leslie, ‘The Myth of Testamentary Freedom’ (1996) 38 Ariz L Rev 235.
4 Inheritance (Provision for Family and Dependants) Act 1975; G. Douglas, ‘Family Provision and
Family Practices – The Discretionary Regime of the Inheritance Act of England and Wales’
(2014) 4 Oñati Socio-Legal Series 222.
5 Wills Act 1837, s 9 (as amended).
6 Law Commission, Inheritance and Trustees Powers Bill Impact Assessment Law Com IA 0012 (2011);
Law Commission, Intestacy and Family Provision Claims on Death Law Com No 331 (2011)
© 2015 The Author. The Modern Law Review © 2015 The Modern Law Review Limited. (2015) 78(6) MLR 945–970
Published by John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
its entirety as bona vacantia (unowned goods), most often to the Crown.7All of
this remains relatively uncontroversial, though the extent to which the intestacy
rules appropriately and adequately ref‌lect the contemporary diversity of familial
forms and practices is open to debate.8
Where a will has been made, it can be challenged after death where there are
suspicions of fraud, undue inf‌luence, or lack of knowledge and approval.9Case
law to date, however, suggests that making such a challenge exposes the person
claiming against the will to signif‌icant diff‌iculties and potentially high costs
orders.10 As Kerridge has argued,11 English succession law does not currently
provide satisfactory responses to the problems that may be caused by excessive
persuasion, coercion or pressure on vulnerable testators. The so-called ‘golden
rule’ that a when a solicitor draws up a will for a person whose testamentary
capacity12 may be in question, ‘it should be witnessed or approved by a medical
practitioner, who ought to record his examination of the testator and his
f‌indings’13 does not offer much assistance as whilst it is ‘prudent guidance for
solicitors’ it ‘does not purport to lay down the law’.14 Indeed, the most reason-
able use for this rule appears to be ‘to assist in the avoidance of disputes, or at least
in the minimisation of their scope’.15 Those who seek to challenge a will on
grounds of undue inf‌luence or fraud will f‌ind the balance of proof falls on them
to prove the alleged misdeeds,16 which, combined with the likelihood of a costs
order if unsuccessful, generates a signif‌icant disincentive to litigation in this
area.17 Further, a successful challenge on the basis of fraud or undue inf‌luence
may result in the estate being held on a constructive trust for those who the
testator wanted to benef‌it.18 In contrast, where a will is set aside (in whole or
part) on grounds of lack of knowledge and approval (the most common ground
7 For the list of unclaimed estates, which is updated daily, see
statistical-data-sets/unclaimed-estates-list (last accessed 6 March 2015).
8 D. Monk, ‘Sexuality and Succession Law: Beyond Formal Equality’ (2011) 19 Feminist Legal
Studies 231; G. Douglas, H. Woodward, A. Humphrey, L. Mills and G. Morell, ‘Enduring Love?
Attitudes to Family and Inheritance Law in England and Wales’ (2011) 38 JLS 245.
9 R. Kerridge, ‘Wills Made in Suspicious Circumstances: the Problem of the Vulnerable Testator’
(2000) 59 Cambridge LJ 310. It appears that ‘unconventional’ wills may be more likely to be
challenged than those which conform to normative patterns of bequeathing to biological kin:
Monk, ibid; A. Diver, ‘Clean hands’ or ‘kinship trusts’? Detrimental reliance and familial promises in
Northern Ireland’s Chancery Division (2011) 17 Trust and Trustees 752.
10 A plea of undue inf‌luence or fraud that is not proven usually results in a costs order against the
party claiming the undue inf‌luence, see Cutcliffe’s Estate, Re [1958] 3 WLR 707 CA; L. Mason,
‘Undue inf‌luence and testamentary dispositions: an equitable jurisdiction in probate law’ (2011)
Conv 115 and Kerridge, ibid.
11 Kerridge, ibid; R. Kerridge, Parry and Kerridge: the Law of Succession (London: Sweet & Maxwell,
12th ed, 2009).
12 Banks vGoodfellow (1870) LR 5 QB 549. The Banks vGoodfellow test for testamentary capacity
survived the Mental Capacity Act 2005, although the two tests are closely linked, and a person
who lacks testamentary capacity may well lack capacity to make other f‌inancial and personal
welfare decisions.
13 Kenward vAdams (1975) The Times 29 November 1975.
14 Hoff vAtherton [2004] EWCA Civ 1554 at [48].
15 Key vKey [2010] EWHC 408 (Ch) at [8].
16 Craig vLumoureux [1920] AC 349.
17 Kerridge (2000), n 9 above.
18 Kerridge (2009), n 11 above, 86.
The Rise of Statutory Wills
© 2015 The Author. The Modern Law Review © 2015 The Modern Law Review Limited.
946 (2015) 78(6) MLR 945–970

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