Re P – Statutory Wills

 In Wills

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statutory wills and mental health

Many people believe they act in someone’s best interests; section 4 Mental Capacity Act 2005 (MCA), effective from October 2007, now brings this principle into law. With this new arrival, the probate world has also changed following the case of Re P [2009] EWHC 163 (Ch); [2009] WLR (D) 41. Here the interesting principles established over 25 years ago by Re D(J) [1982] Ch 237 have been swept away.


Re D(J) established 5 principles that the courts should apply in creating statutory Wills under the Mental Health Act 1959 (MHA 59), where someone lacked mental capacity to make a Will:

  • a statutory Will may be created as if they had a brief lucid moment;
  • during this moment, they have knowledge of their past and imminent relapse into incapacity;
  • the court must view the actual person, not a hypothetical model; the person takes competent advice; and
  • uses a broad brush over an accountant’s pen in creation of a Will.

Change brought about by Re P

With the introduction of the MCA, section 102 MHA 59 and subsequent provisions disappear. There is no longer ‘…making provision for other persons or purposes for whom or which the patient might be expected to provide if he were not mentally disordered…,’ (section 102(1)(c) MHA 59). The MCA instead provides at section 1(5) for ‘An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.’ This is the line taken by Lewison J in Re P [2009] EWHC 163 (Ch) and the creation of statutory Wills.

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Section 4 MCA details how best interests decisions should be made:

  • not on the basis of age or appearance, condition or behaviour;
  • consideration must be given to all relevant circumstances;
  • will P regain capacity sufficient to make this decision and when?;
  • those making decisions must ‘…as reasonably practicable…’, permit and encourage P to improve and participate;
  • consider past and present wishes, feelings, beliefs and values, and ‘…if it is practicable and appropriate to consult…’ anyone named as such or who is caring for P, or is P’s Attorney or Deputy.

Statutory Wills may be executed under section 18(1)(i) MCA following section 16 MCA. Re P says these should be court decisions, ‘…and cannot be entrusted to a deputy (section 20(3)(b)…’.

The Future

Just how Re P is going to operate remains uncertain. Lewison J recognised that the law must be applied and stressed that, ‘…the decision maker is entitled to take into account, in assessing what is in P’s best interests, how he will be remembered after his death.’ ‘…having done “the right thing” by their Will.’ This would suggest not a return to Re D(J), more a question of balancing out what P would have done given the opportunity, in conjunction with the court acting in P’s best interests.

What is certain under section 4 MCA, there will be a closer examination of P’s past and present wishes, feelings, belief and values, together with those who care for or manage their affairs, in determining the contents of their statutory Will.

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