State of play: Court of Protection

The Court of Protection considered the way in which decisions should be taken under the terms of the Mental Capacity Act 2005 (MCA 2005). An application was made by a deputy to apply for authority to execute a statutory will on behalf of the first respondent (F).

F was a 74-year-old man with moderate to severe Alzheimer's and dementia. It was undisputed that F lacked capacity to make a will or gifts from his estate. Alongside the deputy, there were eight other respondents, all potential beneficiaries under F's will.

F never made an official will, but he wrote and signed a document, which was discovered. The document was not dated but had a revocation clause and attempted to appoint executors. It proposed to give pecuniary legacies to ?all the beneficiaries with the residue to go to F's mother. F believed he had made a will.

When considering a statutory will application, a court must decide what is in the incapacitated testator's best interests, as provided under section 1(5) of the MCA 2005. The court emphasised that the overarching principle of the testator's 'best interests' was not the same as deciding what the testator would have decided if he had capacity.

Behrens J stated that alongside the objective test of F's best interests, the checklist of relevant circumstances set out in section 4 (6) and (7) of the MCA 2005 had to be taken into consideration. There was no hierarchy between the various factors to be taken into account as this would differ depending on the individual circumstances. However, it was noted that there could be features in a particular case of 'magnetic importance' in influencing the outcome.

Right choice

The court considered the relevance of whether, if he had capacity, F would feel he had 'done the right thing' by his will. It also looked at how he would be remembered after death. Behrens J stated that although the concept of 'doing the right thing' had carried weight in previous cases, it was not a useful factor in determining the testator's 'best interests'. He emphasised that it was not F who was determining the provisions of the will, it was the court.

Where there was a dispute between family members, those whose arguments were unsuccessful were unlikely to think that F had 'done the right thing'. Interestingly, it was decided not to place any importance on how F would ?be remembered.

Although the court had stated that some features of the case were to be of 'magnetic importance', the imperfect 'will' that F had previously drawn up was not held to be such a factor. This was mainly because it had not been witnessed and there had been significant changes in circumstances during the 26 years since it was made. It was also stated that this document should not be regarded as the starting point for the determination of F's 'best interests'.

The court looked instead to the needs of the beneficiaries, F's moral obligations and any financial and emotional contributions made to F by the beneficiaries to create a will that was unlikely to be challenged.

The guidance provided in Behren ?J's judgment on determining 'best interests' in a statutory will application is valuable and set out plainly. It is likely that this judgment will be cited as an important benchmark in further cases ?on statutory wills.

Jonathan Riley is a partner at Michelmores

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