ITW v Z & Ors

When authorising a statutory will for a person lacking testamentary capacity, the Court of Protection must apply the structured decision-making process in the Mental Capacity Act 2005. The decisive question is the person’s best interests, assessed by considering all relevant circumstances and the statutory factors. The Act creates no hierarchy between those factors. The weight given to wishes and feelings is fact-specific and issue-specific. Relevant circumstances may include material outside the precise wording of sections 4(6) and 4(7). A person’s past wishes provide important evidence but do not determine the outcome. The court may also consider how the person will be remembered after death.

ITW, M’s property and affairs deputy, applied for authority to execute a statutory will under section 18(1)(i) of the Mental Capacity Act 2005. M lacked testamentary capacity. Z, her former carer and sole beneficiary under a 2004 will, opposed the application and sought a statutory will reproducing that will. The Official Solicitor and the charities supported a will broadly reflecting M’s earlier charitable dispositions, with a legacy for PM. The court considered M’s previous wills, her relationships with Z, PM and her cousin J, the substantial transfers made to Z, changes in M’s circumstances, and Z’s conduct. The central issue was what disposition was in M’s best interests.

1. The application succeeded. The court authorised a statutory will in the terms proposed by the deputy, but without provision for J.

2. The court applied the structured decision-making process required by sections 1 and 4 of the Mental Capacity Act 2005. The former authorities concerning statutory wills and settlements under the Mental Health Acts could no longer be directly applied. The relevant decision was a value judgment based on M’s best interests after the statutory factors had been considered.

3. The statute imposed no hierarchy between the relevant factors. Their weight depended on the circumstances, and a factor might have magnetic importance in a particular case. M’s wishes and feelings were always significant, but their weight was case-specific and issue-specific. Relevant considerations included the degree of incapacity, the strength and consistency of the wishes, their rationality and practical workability, their possible emotional impact, and whether they could be accommodated within the overall best-interests assessment.

4. Material outside sections 4(6) and 4(7) was not excluded merely because it did not fall within their precise language. It could still be a relevant circumstance under section 4(2). The views of a past carer could therefore be considered, although section 4(7)(b) might limit the duty to consult to current carers.

5. Best interests could extend beyond death. The court could consider M’s interest in how she would be remembered through the provisions of her will.

6. Z was excluded from benefit. The decisive factors included the fundamental change in circumstances, the substantial sums he had already received and his further claim for care costs, the unresolved issues concerning those transactions, his serious non-compliance with court orders, and the court’s findings that he had failed to prioritise M’s welfare. The court did not need to determine the validity of the 2004 will or the propriety of the inter vivos transactions.

7. Provision for PM and the charities was justified by M’s earlier testamentary pattern, but the changed circumstances did not justify reproducing the greater benefits contemplated by the 2003 codicil. J was excluded because M had consistently regarded him as not needing financial provision, and no sufficient reason existed to depart from those wishes.