References: [2009] EWHC 163 (Ch), [2010] EWHC 1592 (COP), [2010] Ch 33, [2009] NPC 24, [2009] WTLR 651, [2009] LS Law Medical 264, [2009] 2 All ER 1198, [2010] 2 WLR 253
Links: Bailii, Bailii
Coram: Lewison J
Ratio: A request was made for a statutory will.
Held: The 2005 Act marked a radical departure from previous practice. A decision made on behalf of a protected person must be made in his best interests. That was not (necessarily) the same as inquiring what the protected person would have decided if he or she had had capacity. Best interests was not a test of ‘substituted judgment’ (what the person would have wanted), but rather required a determination to be made by applying an objective test as to what would be in the protected person’s best interests. Having followed a structured decision-making process, the Court must then form a value judgement of its own, giving effect to the paramount statutory instruction that any decision must be made in the protected person’s best interests. A protected person’s expressed wishes should not be lightly overridden, since adult autonomy is an important part of the overall picture. But what will live on after the protected person’s death is his memory; and for many people it is in their best interests that they should be remembered with affection by their family, and as having done ‘the right thing’ by their will. The decision maker is entitled to take into account, in assessing what is in the protected person’s best interests, how he would be remembered after his death.
Statutes: Mental Capacity Act 2005
This case is cited by:
- Approved – In re M; ITW v Z and Others (Statutory Will) FD (Bailii, [2009] EWHC 2525 (Fam), (2009) 12 CCL Rep 635, [2009] WTLR 1791, [2011] 1 WLR 344)
The court considered a request for a statutory will under the 2005 Act.
Held: the Court of Protection has no jurisdiction to rule on the validity of any will. However, Munby J made three points: (1) that the 2005 Act laid down no hierarchy as . . - Cited – In Re D (Statutory Will); VAC v JAD and Others ChD (Bailii, [2010] EWHC 2159 (Ch), [2011] 1 All ER 859, [2010] WTLR 1511)
The protected person’s deputy sought authority for making a statutory will for her. An earlier Enduring Power had been found to be a forgery, and a later will was also doubted. The deputy had been appointed. A statutory will had been refused because . . - Cited – NT v FS and Others CoP (Bailii, [2013] EWHC 684 (COP))
An application was made for a statutory will for the patient. The court considered how it should approach competing suggestions as to the provisions to be included.
Held: The 2005 Act had changed the basis for such wills fundamentally. The . .
(This list may be incomplete)
Last Update: 30 August 2019
Ref: 281710
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