Our website is set to allow the use of cookies. For more information and to change settings click here. If you are happy with cookies please click "Continue" or simply continue browsing. Continue.

Private Client Law

18 JUN 2014

The evolution of the statutory will jurisdiction

The evolution of the statutory will jurisdiction

A statutory will is a will which a judge authorises someone to execute on behalf of a person who lacks testamentary capacity. The Court of Protection has had this jurisdiction since 1 January 1970 and England and Wales were the first countries in the world to enact legislation of this kind.

This article considers:

•the evolution of the jurisdiction from mediaeval times to the Administration of Justice Act 1969, which conferred on the court the power to make a statutory will;

•the ‘substituted judgment’ approach, which the Court of Protection applied when making wills on behalf of patients from 1970 until 2007, and how the court tackled the problem of making a substituted judgment on behalf of someone who never had testamentary capacity;

•the rejection of substituted judgment in favour of a ‘best interests’ approach following the implementation of the Mental Capacity Act 2005 on 1 October 2007;

•the development of the statutory will jurisdiction elsewhere in the British Isles and the Commonwealth; and

•the possible effect on will-making of Art 12 of the United Nations Convention on the Rights of Persons with Disabilities, which the United Kingdom ratified on 8 June 2009.


The full version of this article appears in issue 2 of 2014 of Elder Law Journal. If you subscribe to the journal please click here to read the full article.

Court of Protection Law Reports

Court of Protection Law Reports

"The Court of Protection Law Reports are an invaluable resource for practitioners, enabling them...

More Info from £147.00
Available in Private Client Law Online
Inheritance Act Claims

Inheritance Act Claims

Law, Practice and Procedure

"a marvellous book to which I will be subscribing and no doubt which will never be on my shelf as...

Available in Private Client Law Online
Subscribe to our newsletters