The importance of ‘best interests’ in statutory wills.
Judge: District Judge Eldergill
Citation:  EWCOP 59
This case concerned an application, under s18(1)(i) of the Mental Capacity Act 2005 for authority to execute a statutory will on behalf of P. District Judge Eldergill heard the application and brought to the attention of the court the need to ensure P is seen to ‘do the right thing’.
DJ Eldergill noted that in Re M, ITW v Z & Ors  EWHC 2525 (COP), the President did not on the basis that it was somehow the right thing to do, make provision in the statutory will for a legacy for J – who was the only person to have maintained a relationship with M and who continues to visit and telephone her. In so deciding, a ‘particularly compelling feature’ was that J: “would be gaining a benefit which M, while she had capacity, felt that he did not need and which, it would seem, she still thinks he does not need. How can it be in her best interests to go counter to such long-held views? The only proper answer, it seems to me, would be if it could be said that giving him a legacy was either an appropriate reward for what he is now doing for M or an inducement to him to do more for her; but neither, in my judgment, can be justified in the circumstances as they exist (at para. 57).”
DJ Eldergill ordered the execution of a statutory will that left 75% of P’s estate to his wife and 25% to his daughter with a substantial advancement by way of a lifetime gift (broadly following suggestions made on P’s behalf by the Official Solicitor.
Although a decision which strictly, has no precedent value, we anticipate that, as with many other decisions by District Judge Eldergill, both practitioners and members of the judiciary will refer in future to the clear summary of the law at paragraphs 62-68. We suspect the ringing statement at paragraph 65 is likely to feature in many a training session.
Paragraphs 72-75 will also, we suspect, be pored over as we grapple with what the Convention on the Rights of Persons Disabilities means when it demands that we ensure ‘respect for the rights, will and preferences’ in any legal procedures invoked in relation to persons said to be unable to take their own decisions (as to which see Re NRA case note).