New law leaves way open for disputes over wills

Non-family members expecting to benefit from a person's will may find they lose out to the will-maker's family following a recent ruling, even to family members who have played no significant part in the will-maker's life, if the will-maker becomes mentally incapable.

Under new law introduced in 2007, the Court of Protection - the body that makes decisions in relation to the  property, affairs, healthcare and personal welfare of people who lack the capacity to do so themselves - has power to make a 'statutory will' for such persons in certain circumstances. These include if the person has never made a will or they have, but their family or fortunes have changed significantly since they did so.

The Act says that the Court must make the will in the person's 'best interests', including their wishes and feelings. The courts have decided that this means taking into account how they would want to be remembered by their family, and generally assume they would want to be remembered fondly by their family, and as 'having done the right thing'.

However, this cuts across the principle that people are allowed to make any provision they want in their will, without explanation, even if it is detrimental to their family. For example, a will may exclude certain children or other relatives from inheriting, no matter how cruel or unreasonable that is.

It also means that family members who reappear in the person's life as they approach incapability, or have become incapable, are benefiting from statutory wills, even though no provision has been made for them in the person's actual will. Sometimes, such people are not acting from the best of motives - particularly where the incapable person is wealthy.

Recommendation
Relatives of persons who become incapable of managing their affairs should ensure that they provide them with the support and care they need, and are alert to others who 'reappear' in their lives at a late stage, so that inheritance issues can be raised early and, if necessary, advice taken, to head off disputes.