Challenging a Statutory Will – ‘best interests’ count

In the recent case of ADS v DSM (2017 EWCOP 8) a Statutory Will drawn up by the Court of Protection was overturned following a challenge by one of the beneficiaries.

In most cases, a statutory will is unlikely to be challenged. Despite that general rule, in ADS v DSM, one of the sons of the incapacitated testator did successfully challenge his mother’s statutory will because of failures in the preparation of the case.

The Facts of ADS v DSM

The Claimant’s mother lacked capacity to make a will so her property and financial affairs deputy applied to the Court of Protection to have a statutory will prepared which would divide her estate equally between her sons, A and D. Despite this, the statutory will that resulted left only 25% of the estate to A, while D was to receive 75%. The Official Solicitor’s view was that an equal distribution of the estate would not reflect the mother’s true feelings – there was a history of dispute between the mother, P, and A, and evidence had been given that the mother had often indicated that she intended to disinherit A.

On appeal, the Court of Protection found that the statutory will had not been correctly prepared. He drew up a new Statutory Will, the contents of which are not known. What he did make clear were the steps that had to be taken when making a statutory will – and which, if not followed, could form the basis of a challenge such as in this case. These were:

• Careful identification of the issues of fact & law
• Consideration of how to involve the incapacitated person, how to ascertain his or her wishes & feelings
• The involvement of the Court of Protection in other legal proceedings involving the parties before the civil courts if the judge is not nominated to approve Court of Protection matters

Statutory Wills – ‘best interests’

Where an individual lacks mental capacity, the Court of Protection can make a ‘statutory will’ on that person’s behalf under s.18(1)(i) Mental Capacity Act 2005. This avoids the likelihood that any will the individual makes him or herself can be challenged following the case of Banks v Goodfellow . Anyone can apply for a statutory will to be drawn up, although it is easier for someone who has already been appointed as Attorney or a Deputy as they will not have the additional hurdle of proving that the person concerned does not have mental capacity.

On receipt of an application, the Court of Protection will bring in the Official Solicitor who looks at the application and the circumstances from an independent perspective. The Official Solicitor, and anyone else involved, can make representations to the Court of Protection as to the contents of the statutory will.

In drawing up a statutory will, the Court of Protection must not try and think what the incapacitated person would have done – but must take a view as to what is in his or her ‘best interests’, taking into account all the factors. What a person might or might not have done may form part of this consideration, but is not the only thing to consider – another factor is how the incapacitated person would be remembered and whether they had done ‘the right thing’.

The risk of undue influence

One of the key issues in this case was the fact that P, the mother, was living with D at the time of the inquiries in relation to the statutory will. The visitor from the Court of Protection came to D’s house and interviewed her there, while D and other members of his family were present in the property. There may be circumstances, such as this where there had been a history of dispute and allegations of undue influence, where it might be appropriate for such an interview to be carried out at a neutral venue. However, if this would add to the anxiety and confusion suffered by the incapacitated person, it might be counter-productive.