re p - all change for statutory wills, a new direction
The case also involved entailed interests and had a significant cross-border element as the patient was domiciled outside the UK.
This was a landmark judgment for the Court which reviewed the guidance laid down in earlier judgments relating to the making of statutory wills and decided that the terms of the Mental Capacity Act 2005 required the Court to take a very different approach to that which applied under the earlier legislation.
Under the 2005 Act, any decision taken on behalf of the patient must be made in the patient's best interests. The Court held that a "balance sheet" approach should be taken to establish the patient's best interests, under which the patient's wishes, feelings, beliefs and values should be taken into account but must be considered alongside all other relevant factors.
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Re P - All Change For Statutory Wills - A New Direction
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The decision of Mr Justice Lewison in Re P is the first judgement of a High Court Judge (sitting as a Judge of the Court of Protection) relating to the execution of a statutory will since the Mental Capacity Act 2005 (“MCA”) came into force. The decision has led to a change in the criteria to be considered when making a will for a person that lacks capacity (“the Patient”) and has overturned the previous authority of Re D(J) .