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Private Client Law

18 JUN 2014

The evolution of the statutory will jurisdiction

Denzil  Lush

Senior Judge of the Court of Protection

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.

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