The Evolution of Statutory Wills: From Substituted Judgment to Best Interests

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A statutory will is a legal instrument executed on behalf of an individual who lacks the mental capacity to make a will themselves.  Under the Mental Capacity Act 2005 (MCA), the Court of Protection has the authority to approve the execution of such wills, ensuring they align with the best interests of the incapacitated individual, referred to as “P”.  This article reflects upon the court’s approach to statutory wills, in consideration of two historically significant cases: Re P (Statutory Will) [2009] EWHC 163 (Ch) and Re M [2011] 1 WLR 344.

Historical Context: Substituted Judgment

Before the MCA, the statutory powers to make decisions on behalf of incapacitated individuals were governed by the Mental Health Acts of 1959 and 1983. These acts endorsed a “substituted judgment” approach, where the court would endeavour to make the decision that P would have made if they had the requisite capacity.

The case of Re D(J) [1982] Ch 237 is illustrative of this, with Sir Robert Megarry V-C outlining that the court must take a highly subjective approach to the terms of the will in consideration of P’s specific personality and preferences in a hypothetical, lucid interval.

Shift to Best Interests: Re P [2009] EWHC 163 (Ch)

The landmark case of Re P marked a significant shift from the substituted judgment approach to a “best interests” framework, as implemented by the MCA. The Honourable Mr Justice Lewison, sitting in the Court of Protection, clarified that the court should no longer attempt to simply hypothesise what the incapacitated individual would have decided.  Instead, the court must objectively prioritise the best interests of P, even if this does not necessarily align with what P might have chosen.

Lewison J emphasised that whilst P’s past and present wishes, feelings, beliefs, and values should be considered, they are not determinative. The decision-maker must balance these factors alongside all relevant circumstances – including, on occasion, appropriate financial and legal advice, and instructions on how P would want to be remembered after their death – but the overarching principle is that the final decision must be based entirely on what is in P’s best interests.

Practical Implications: Re M [2011] 1 WLR 344

The case of Re M further elucidates the practical application of the best interests principle and the importance attached to P’s wishes and feelings.

Munby J held that beyond the overarching principle of protecting what is in P’s best interests, the legislation does not create a hierarchy between the various factors which have to be borne in mind.   He further went on to make the following observations, specifically in relation to the nature of P’s wishes and feelings:

  1. P’s wishes and feelings will always be a significant factor to which the court must pay close regard.
  2. The weight to be attached to P’s wishes and feelings will, inevitably, differ depending upon the individual circumstances of the particular case. In some cases, in some situations, they may carry much, even, on occasions, preponderant, weight. In other cases, in other situations, and even where the circumstances may have some superficial similarity, they may carry very little weight.
  3. In considering the weight and importance to be attached to P’s wishes and feelings the court must of course, and as required by section 4(2) of the MCA, have regard to all the relevant circumstances. In this context the relevant circumstances will include, though I emphasise that they are by no means limited to, such matters as
    1. the degree of P’s incapacity;
    2. the strength and consistency of the views being expressed by P;
    3. the possible impact on P of knowledge that [their] wishes and feelings are not being given effect to;
    4. the extent to which P’s wishes and feelings are, or are not, rational, sensible, responsible and pragmatically capable of sensible implementation in the particular circumstances; and
    5. crucially, the extent to which P’s wishes and feelings, if given effect to, can properly be accommodated within the court’s overall assessment of what is in [their] best interests.

This perspective acknowledges that it is essential to consider P’s past and present wishes, values, and beliefs, but the weight to be attached to the same will always be case-specific and fact-specific, and the ultimate decision must serve P’s overall welfare and well-being.

Conclusion: where are we now

The best interests approach in drafting a statutory will for an incapacitated person presents a unique challenge.  As with all wills, statutory wills are ambulatory in nature and so the practical impact of the will’s substantive terms will only manifest after P’s death.

The transition from the substituted judgment approach to the best interests framework represents a fundamental change in how statutory wills are approached in the Court of Protection. The Re P decision underscores the MCA’s intention to create a more realistic and protective legal environment for incapacitated individuals. By focusing on best interests, the court aims to ensure that decisions are made with a broader perspective on what will benefit P, rather than narrowly interpreting what P might have wanted.

Whilst P’s wishes remain important, they are just one element of the comprehensive assessment required by the MCA.  The case of Re M reinforces the practical application of this principle, demonstrating the court’s commitment to a thorough and balanced evaluation of all relevant factors.

This article is for general purpose and guidance only and does not constitute legal advice. Specific legal advice should be taken before acting on any of the topics covered. No part of this article may be used, reproduced, stored or transmitted in any form, or by any means without the prior permission of Brecher LLP.