A senior family lawyer recently criticised the way the law is being interpreted by the Court of Protection when deciding how the estate of someone who lacks capacity should be apportioned.
Under the Mental Capacity Act 2005, which came into force in October 2007, the Court has the power to make a ‘statutory will’ if a person lacks the capacity to make a will themselves. This usually occurs when there has been a change in that person's family or wealth since an earlier will was drawn up, and they are no longer able to execute a new one, or where someone has not made a will at all. In these circumstances the Court has to decide what is in the ‘best interests’ of the incapacitated person, rather than putting themselves into that person’s shoes to ascertain how they would wish to distribute their estate.
This can include deciding that they would want to be remembered fondly by their surviving relatives or friends.
This approach marks a considerable shift from previous practice, when it was generally accepted that an individual had the right to make an eccentric will and to disinherit their children if they chose.
This change can result in ‘Johnny come lately’ relatives benefiting from a share of an estate to which they previously had no entitlement. If a relative becomes very attentive to an elderly person who no longer has the capacity to make a valid will, the change in the law means that they may be able to become a beneficiary of the estate even though they were not included in an earlier will.
It is sensible to make sure you plan for the inevitable and review your will regularly to make sure it reflects your wishes and your current circumstances.