In a very helpful judgment, Behrens J reviewed the recent decisions on statutory wills and produced a summary of how to make a decision that is in P's best interests, in the context of a statutory will.
The statutory provisions
The law is straightforward. Under section 1(5) of the Mental Capacity Act 2005 any decision made for a person, P, who lacks capacity must be made in his best interests.
Section 4 expands on the concept of ‘best interests’ referred to in section 1(5). It provides (so far as relevant):(2) The person making the determination must consider all the relevant circumstances and, in particular, take the following steps.(6) He must consider, so far as is reasonably ascertainable:(a) the person’s past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity),(b) the beliefs and values that would be likely to influence his decision if he had capacity, and(c) the other factors that he would be likely to consider if he were able to do so.(7) He must take into account, if it is practicable and appropriate to consult them, the views of:(b) anyone engaged in caring for the person or interested in his welfare,(d) any deputy appointed for the person by the court, as to what would be in the person’s best interests and, in particular, as to the matters mentioned in subsection (6).
Section 16 gives the court the power to appoint a deputy, or to make decisions on behalf of a person who lacks mental capacity. Section 18 sets out the powers conferred by section 16, which include the execution for P of a will. The decision to authorise the execution of a will for P is a decision which must be made by the court itself, and cannot be entrusted to a deputy (section 20(3)(b)). The will may make any provision (whether by disposing of property or exercising a power or otherwise) which could be made by a will executed by P if he had capacity to make it (paragraph 2 of schedule 2).
Summary of authorities
Behrens J considered four authorities: the decision of Lewison J (as he then was) in Re P; the decision of Munby J (as he then was) in Re M  EWHC 2525 (Fam),  3 All ER 682,  1 WLR 344; the decision of Morgan J in Re G(TJ)  WTLR 231; and the decision of Senior Judge Lush in Re J(C)  WTLR 121. He summarised the guidance from them as follows:
(1) The 2005 act marks a radical change in the treatment of persons lacking capacity. The overarching principle is that any decision made on behalf of P must be in P’s best interests. This is not the same as inquiring what P would have decided if he or she had had capacity. It is not a test of substituted judgment but requires the court to apply an objective test of what would be in P’s best interests [paragraphs 36-38 of Re P].
(2) The court must follow the structured decision-making process laid down by the 2005 act. Thus the court must consider all relevant circumstances, and in particular must consider and take into account the matters set out in sections 4(6) and 4(7) which I have set out above.
(3) The court must then make a value judgment giving effect to the paramount statutory instruction that the decision must be made in P’s best interests [paragraph 39 of Re P].
(4) As Munby J pointed out [paragraph 32 of Re M] the 2005 act contains no hierarchy between the various factors which have to be borne in mind. The weight to be attached to different factors will inevitably differ depending on the individual circumstances of the particular case. There may, however, in a particular case be one or more features which, in a particular case, are of ‘magnetic importance’ in influencing or even determining the outcome.
(5) When evaluating all the factors to determine what is in P’s best interests (the balance-sheet approach), the views and wishes of P in regard to decisions made on his behalf are to carry great weight. However, there is no presumption in favour of implementing those wishes. The weight to be attached to P’s wishes and feelings will always be case-specific and fact-specific. 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 (paragraph 34 of Re M).
Behrens J then acknowledged that the authorities differed as to the relevance to the decision-maker of P ‘having done the right thing’ by his will and being remembered for that after his death. Both Lewison and Munby J took the view that this was a relevant matter to be placed in the balance sheet. However, Morgan J and Senior Judge Lush expressed doubts [see paragraphs 52–53, 64 of Re G(TJ) and paragraph 54 of Re JC].
As Morgan J pointed out, the making of the gift and/or the terms of the will are not being made by P but by the court. Furthermore, insofar as there is a dispute between family members, the unsuccessful members are not likely to think that he had done the right thing. Behrens J accepted that there was force in Morgan J’s views, and on the facts of the application before him decided that it was unnecessary to place any weight on this factor.
P had substantial capital assets (£3m) but it was impossible to predict what the estate would be on death. This would depend on the extent to which properties are sold and thus incur a liability to capital gains tax, the inheritance tax regime at the date of death and the extent to which the assets have been spent prior to death. There were a number of claimants including an elderly mother suffering from dementia, an illegitimate adult son and a longstanding cohabitee who was now acting as a carer.
P had written a will and signed it but it was not witnessed. It was regarded as helpful but not of magnetic importance. The final order gave 35% to the cohabitee and divided the balance between the illegitimate son (43%) and members of P’s family who had assisted him in his property development business (22%). In addition, a lifetime gift of £50,000 to P’s mother was authorised to help cover the cost of her residential care.
Lesley King, College of Law