Re D (statutory will) [2010] EWHC 2159 (Ch), [2010] All ER (D) 102 (Aug)
Even if all relevant parties consented to the terms of the proposed statutory will, that could not be conclusive because the execution of a will for a protected person was a decision which had to be made by the court itself, and could not be entrusted to a deputy.
In determining whether to order the execution of a statutory will for and on behalf of a person who lacked capacity, the court had to act in that person’s “best interests”. That concept was explained in s 4 of the Mental Capacity Act 2005, which required the court to consider all the relevant circumstances and, in particular, to apply a structured decision making process. The concerns identified by the district judge were factors which the court could take into account when deciding whether to order the execution of a statutory will; and they might, in an appropriate case, lead the court to conclude that it should not exercise its power to do so. However, there could be no presumption, still less any principle of general
