Testing capacity

For the first time, an application for authority to execute a will for an adult with impairments of capacity has come before a sheriff principal on appeal. In Ward, Applicant, Paisley Sheriff Court, 17 December 2013 (www.scotcourts.gov.uk/opinions/AW35_13.html), Sheriff Principal B A Kerr QC allowed an appeal against a sheriff’s refusal to authorise a solicitor, by intervention order, to execute a will on behalf of an elderly adult. He remitted the case to the sheriff to hear proof as to testamentary capacity and intention.

The adult had never made a will. On intestacy, his estate would pass to the children of a deceased cousin. He consistently told the applicant that he did not wish them to inherit. The applicant discussed with him who should inherit and prepared a will. The adult repeatedly declined to execute it. Medical evidence submitted with the application confirmed that the adult’s mental disorder blocked him from acting decisively, and from committing to the terms of the will which had been drafted by executing it.

Before the sheriff, the applicant was requested to address the court on the competence of granting the authority sought. A solicitor representing the local authority made a brief submission. A mental health officer addressed the court, stating her opinion that the adult did not have capacity to instruct the applicant regarding making a will. An earlier written opinion from the chief executive of the Mental Welfare Commission for Scotland stated that the adult had capacity to instruct a solicitor, though this was not in the context of making a will.

Competence and criteria

There was no contradictor at the appeal hearing. The applicant’s submissions related principally to the questions of the competence of seeking authority by way of an intervention order to execute a will for an adult; if that were competent, the criteria which the court should apply in deciding the matter; and the application of those criteria to the facts before the sheriff. The sheriff principal held the application competent. He rejected the applicant’s argument that the matter should be decided by reference to the s 1 principles in the Adults with Incapacity (Scotland) Act 2000; and that the rules of intestate succession provide a fallback, not a preferred, outcome, which should be balanced – using s 1 principles – against the proposed will. He held that “the court has to be satisfied on appropriate evidence that [the adult] had testamentary capacity when he expressed a testamentary intention which remains the same at the time of granting” the order sought.

Commentary

It is implicit in the sheriff principal’s decision that he recognised the possibility that the adult might have capacity for some elements of the process of making a will, but not for others. It remains to be seen whether another sheriff principal, or the Court of Session on further appeal, might take the view that the courts are bound by s 1(1) to apply the principles rather than any other test. As regards the MHO, the sheriff principal highlighted the need for clarity as to whether the court is hearing submissions or taking evidence. That has been a point of concern for many practitioners. Disappointingly, he declined to criticise a delay of more than three months from submission of the original application until first hearing.

This decision should not be read as confirming the competence of seeking will-making powers in a guardianship order. The powers which may be conferred under a guardianship order are defined more narrowly in s 64 of the 2000 Act than those which are competent under an intervention order in terms of s 53. Any future finding by an appellate court that will-making is not competent by guardianship order might call into question the validity of any wills so made. England & Wales has an explicit procedure for making “statutory wills” under the Mental Capacity Act 2005. In Scotland, a focused process of addressing such an application by way of an intervention order might, in any event, represent better practice for such a significant step.