By Celia Kitzinger, 27th March 2025
“This is one of the most clear-cut cases I’ve seen. You have provided support, community and love to somebody in the times they really needed it. I want to acknowledge, on behalf of this court, the job you have done and continue to do”. That’s what the judge said to Mrs G and her husband after approving a statutory will leaving them several tens of thousands of pounds. It was a lovely hearing to watch, because that seemed very much to be true!
Many people don’t know that it’s possible to apply to the Court of Protection (under s.18(1)(i) of the Mental Capacity Act 2005) for a will to be made on someone else’s behalf, once they’ve lost the mental capacity to do this for themselves. These are called “statutory wills”.
The court can authorise the making of a new will in someone’s best interests where that person (“P”) is still alive and has not made a will at all; or when they have made a purported will but it doesn’t meet the legal requirements for a valid will; or – as in the case I observed – where they’ve previously made a valid will but circumstances have changed significantly since they did so, and there is evidence that they would have wanted to change their will if they still had testamentary capacity.
In the hearing I watched (COP 14055281 before Tribunal Judge Reeder sitting at First Avenue House on 18thMarch 2025), the judge made a final determination about a statutory will for a 97-year-old woman (“P”) who has advanced dementia and is now quite frail – and may even be “end of life”. She was represented, via the Official Solicitor by Thomas Entwistle of 5 Stone Buildings.
Mrs G, who brought the application, is the sister of P’s late partner (represented by Antonida Kocharova of 3PB Barristers). She was not a beneficiary at all in P’s existing will. It had been made many years ago (I think I heard “in the 1980s”) and it seems P had not even known Mrs G, and certainly hadn’t anticipated the important role she would play in her life, at the time that will was made.
I don’t have as much detail as I would like – and am not fully confident of the facts – because the judge has so far declined to give the parties permission to release their Position Statements to me. He has also not yet released the approved order (to which I’m entitled under Civil Procedure Rule 5.9[1]). The judge tells me he intends to consider the matter on 1st April 2025 and I will update this blog post after that – if I gain access to the documents. My account of the facts is as accurate as I can make it under the circumstances.
My understanding is that Mrs G had originally made an application to the court asking for a declaration that it was in P’s best interests for her (Mrs G) to receive a life-time gift from P of £100,000. The rationale behind the gift was because (it seemed common ground among the represented parties) there had been a “mistake” in P’s partner’s will and “his intentions were frustrated”. He had intended his sister to have a legacy of £100,000 on his death – but he had failed to sever the joint tenancy on the family home he co-owned with P, which consequently passed to P by survivorship, leaving barely anything in his estate. It’s very likely that he discussed this legacy with P (they had mirror wills) and that she was in agreement with this legacy for Mrs G.
The application for a life-time gift to Mrs G was opposed by P’s daughter and P’s daughter’s husband on the grounds that P needed the money to pay for accommodation and care. Mrs G then applied instead to be a beneficiary of P’s will. This was also opposed by P’s daughter and P’s daughter’s husband on the grounds that there is “no evidence that P wished Mrs G or her husband to benefit from her estate”.
So, the matter had now moved to a contested hearing.
Unfortunately, the two unrepresented parties – P’s daughter and P’s daughter’s husband – had not joined the hearing (conducted over MS Teams). Nor had they filed reasons for their objections to the proposal agreed by the Official Solicitor and Mrs G about how to move forward – despite a direction so to do by a deadline of around a month earlier. The judge went to some trouble to establish that P’s daughter and the daughter’s husband had been made aware of today’s hearing before deciding that there was some urgency to the application due to P’s frailty. The cost of further protracting the case, and the delay and cost of another hearing, also played a part in his decision to go ahead with the hearing in the absence of these two parties. The case, he said, needed to be resolved “expeditiously” and “in a way that saves expense” (especially given that some of that expense is borne by P herself).
According to the excellent Dictionary of the Court of Protection[2], there is, in these cases, an overriding objective to resolve the matter as quickly as possible and with minimum expense to P, and the court expects the parties to adopt a co-operative approach to resolve issues. In practice, most statutory wills are agreed between the parties without the involvement of the court.
There had been an attempt to reach an agreement out of court. The Official Solicitor and Mrs G had decided that it would be fair (and pragmatically likely to reach agreement with the daughter) if the will were to say that Mrs G should get 35% of whatever remained in P’s estate when she died, and her daughter should get 65%. The funds were said to be “depleting quite quickly” with care costs and this would amount to “significantly less than £100,000” going to Mrs G. The daughter and her husband had not agreed, and had failed to comply with a court order setting out the reasons for their disagreement.
Counsel for Mrs G set out the reasons why the court should make the statutory will in the terms proposed: P’s former partner had intended to make provision for Mrs G; Mrs G and her husband are the only people who regularly visit P; and although P is not able to understand the issues and lacks capacity to make a will now, she would want – or would have wanted – to be seen to be doing the right thing by them.
The judge accepted the evidence that Mrs and Mr G had provided “comfort and assistance, community and family” to P since her husband’s death: “outside of those who are paid to care for her – which is not intended to be pejorative, they do a marvellous job! – the Gs have been there for her, and the common thread is their commitment to P – and to P’s husband when he was alive. It is entirely compelling that [P’s husband] during his life, and P now, would want to ensure provision for them”.
On screen I could see Mr and Mrs G looking overwhelmed with relief and quite emotional at this recognition of their role in P’s life. Both were wiping away tears and smiling.
The will was approved (with the 35%/65% split as proposed) and the judge turned to costs – imposing an adverse costs order against P’s daughter and her husband on the grounds they had not taken “a constructive approach”, had adopted a “a capricious position”, and that there had been “a conspicuous lack of helpful engagement” from them. Costs will be taken from P’s estate in the first instance with recovery of those costs from the daughter’s portion of the estate when P dies, so that Mrs G is not financially disadvantaged.
Celia Kitzinger is co-director of the Open Justice Court of Protection Project. She has observed more than 600 hearings since May 2020 and written more than 100 blog posts. She is on LinkedIn (here), and also on X (@KitzingerCelia) and Bluesky @kitzingercelia.bsky.social)
[1] “Supply of documents to a non-party from court records. 5.9.—(1) Subject to rules 5.12 and 4.3(2), a person who is not a party to proceedings may inspect or obtain from the court records a copy of any judgment or order given or made in public.” (Civil Procedure Rule)
[2] Dictionary of the Court of Protection by HHJ Carolyn Hilder and others, 2025 edition, Class Legal
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