In the case of Re Jones [2014] EWCOP 509, the Court of Protection decided that it was in the best interests of an intestate elderly man who lacked the testamentary capacity for a statutory will to be made on his behalf.

By way of background, Mr Jones, despite his age (81) and his substantial assets of approximately £2.3m had never made a will. Unfortunately, Mr Jones was diagnosed with dementia and lacked the testamentary capacity to rectify this.

Mr Jones had a wife, Mrs Jones, of 40 years whom he lived with abroad and who cared for him. Mr Jones also had a daughter, Anne from a previous marriage, based in Canada. Anne had only seen her father three times since the age of 13, and the two shared sporadic correspondence. Anne had addiction problems and also suffered from a mental health issue. Needless to say, she had serious financial problems.

Upon Mr Jones’ death, the intestacy rules under the Inheritance and Trustees’ Powers Act 2014 s 1 meant that Mrs Jones would inherit the statutory legacy of £250,000 plus personal chattels and both Anne and Mrs Jones would receive a half share of the remainder of the estate.

The effect of the UK intestacy law meant that Anne would inherit a disproportionate amount of her father’s estate given their estranged relationship and failed to adequately provide for Mrs Jones despite her long marriage and her future needs. Therefore Mrs Jones and her solicitor, both joint Deputies of Property and Financial Affairs for Mr Jones applied under the Mental Capacity Act 2005 s.18(1)(i) for authority to execute a statutory will on behalf of Mr Jones to allow independent professional executors to be appointed to deal with the administration of the estate and avoid these harsh intestacy provisions.

Judge Eldergill ruled that it was in Mr Jones’s best interests that a statutory will be executed on his behalf as the intestacy rules did not reflect the needs of the parties. He also ordered that specialise executors be appointed, who could deal with Mr Jones’ complex and international estate in the most tax-efficient way. The result was a will that divided Mr Jones’ assets, with a 75% share of his wife and 25% to his daughter.

The outcome of any statutory will application will be case specific and fact specific. Given that our English legal system recognises that each individual has testamentary freedom, including the choice not to make a will, the court will not make this decision lightly. It applies a complex analysis to determine first and foremost what is in P’s best interests.