When a person no longer has the mental capacity to make a valid will (‘testamentary capacity’ in legal terms), an application can be made for a ‘statutory will’ to be created for them. When this is done, the court collects evidence as to the intentions of the person and tries to create the will it thinks he or she would have created had they had the necessary mental capacity.

A recent application for a statutory will to be created in order to deal with the estate of a multi-millionaire who had led a ‘colourful’ life resulted in unusually complicated deliberations as the court decided what it was best to do.

The man had been married for four years and was the father of four children – two daughters by his wife during their marriage, one daughter by her after the marriage ended and a son by another woman before he was married. The son was raised in care from the age of eight and as an adult worked with his father in the father’s business. The son claimed that he had been promised that he would inherit under his father’s will.

The daughter born to his ex-wife after the marriage ended was given up for adoption as a baby and never had anything to do with her father, although she had made contact with other family members over the years.

The other two daughters had little contact with their father, although one had started to visit him when he went to live in a care home.

The man eventually made a will in favour of the two daughters born when he was married, but later claimed that he had been ‘tricked’ into doing so.

Because of his lack of mental capacity, the Court of Protection appointed a deputy to supervise the man’s affairs. The deputy applied for a statutory will to be drafted dividing the man’s estate equally between the two daughters born during his marriage and his son.

When the man was visited by the representative of the official solicitor, he stated that he did not want any of his children to inherit, claiming that they were only interested in his money. He said essentially the same thing to a psychiatrist sent to assess his mental capacity to make a will.

The daughter born after his divorce then applied for a statutory will to be created which would include her – proposing that the estate be divided equally among all his children.

Commenting that the man had consistently ‘done the wrong thing’ rather than the right one, the judge concluded that even if he had the capacity to make a will, he would decline to do so. However, having a statutory will in place was regarded as beneficial, so the decision was made to distribute the estate as the deputy had proposed, excluding the claim of the third daughter.


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