A recent Court of Protection case, ITW v Z and M, considered whether a statutory Will should be drafted for an elderly woman who lacked testamentary capacity. In 2004, the woman made a Will leaving her entire estate to the carer, Z and also drew up an Enduring Power of Attorney naming Z as her attorney.
However, the elderly woman had since been removed to a care home under a court order as it was not considered in her best interests to remain with the carer. The local authority raised objections to the application for registration of the Enduring Power of Attorney by Z, who eventually withdraw the application. A deputy, ITW, had been appointed to look after M’s property and affairs.
Under the Mental Capacity Act 2005, the Court has to act in M’s best interests and also consider her past and present wishes, beliefs and values that would be likely to influence any decisions M might have made if she had capacity.
It had been discovered that Z had withdrawn significant amounts from M’s bank account, including £100,000 as a gift which was used to buy a property abroad. The Court found that Z had not provided full and proper accounts of the money that had been withdrawn.
M was the only child of since deceased parents and had no close relatives. The Court established that there was no one who could make a claim on her estate under the Inheritance (Provision for Family and Dependants) Act 1975. The Court looked at previous Wills made by M, which largely followed the pattern of making legacies to charities and giving a legacy to a friend and previous neighbour. However, a Will made in 2004 named Z as sole beneficiary. Although the Court did not rule on whether M had testamentary capacity at the time of making this Will, it was likely that the 2004 Will had been made on the basis that M would remain in Z’s care for the remainder of her life.
The Court felt that as Z had already received significant monies from M, it would not be in M’s best interests for Z to be a beneficiary in any Will. However, the friend and previous neighbour named in a previous Will, was entitled to a legacy. Therefore the Court made a Statutory Will that left a legacy to the friend and previous neighbour, legacies to the charities M had previously wanted to leave but not provide for Z.
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