Russell-Cooke's Contentious Trust and Probate Team recently concluded a landmark case at the High Court. It was the first matter relating to the Court's statutory powers to approve a statutory Will for a patient who lacked mental capacity since the Mental Capacity Act 2005 ("MCA") came into force in October 2007.

Alison Regan, head of the Contentious Probate team, lead on the case with assistance from Richard Frimston and Jenny Raymond.

The matter involved entailed estates, private international law (non EU jurisdiction and English issues) and a change in the law in the directions to the Court in statutory will cases.

The guidance to the Court in statutory Will cases before this case had been on a "substituted judgment" basis. In other words the Court assumed a lucid interval and considered what Will the patient would have made if he or she had capacity. The guidance was set out in Re D(J) [1982] Ch 237 which has been the cornerstone of statutory Will applications.

In this case, Mr Justice Lewison has held that this is inconsistent with the MCA which obliges the Court (or any decision-maker) to consider the patient's "best interests" and to consult with the patient wherever possible. The problem is obviously that a decision may be in the patient's best interests but would not necessarily have been the decision the patient would have made if he or she had capacity.

This case has set out that the "balance sheet" approach is the better approach. The Court must consider what is in patient's best interests taking into account all relevant factors, including the patient's own present wishes which are given the appropriate weight in the "balance sheet".

The case also considered the effect of a Will ordered to be executed on behalf of a person domiciled outside England and Wales where the Will relates only to immoveable property in England and Wales and concluded that there is no bar on the Court to make such a Will, only the effect of the Will may be in issue.

In summary, an application for a Statutory Will will now require consideration of what is in the patient's best interests which is largely a value judgment. This is as opposed to the "mental gymnastics" a decision maker would have had to perform prior to this case in which he was required to consider what Will the patient would have made, if he or she had the requisite capacity.