Q&As

Is a deputy for an individual without testamentary capacity, who is of uncertain domicile, able to create a statutory Will, per Practice Directions 9E and 9F?

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Produced in partnership with Graham Stott of gunnercooke LLP
Published on LexisPSL on 10/03/2020

The following Private Client Q&A Produced in partnership with Graham Stott of gunnercooke LLP provides comprehensive and up to date legal information covering:

  • Is a deputy for an individual without testamentary capacity, who is of uncertain domicile, able to create a statutory Will, per Practice Directions 9E and 9F?

Under section 18(1)(i) of the Mental Capacity Act 2005 (MCA 2005), the Court of Protection may authorise the execution of a Will for P, which, under MCA 2005, Sch 2, para 4(3), may make any provision which could have been made by P if they had capacity to make a valid Will and the Will had been executed in the manner required by the Wills Act 1837.

For further information, see Practice Note: Statutory Wills—Court of Protection applications and Commentary: Statutory Wills: Court of Protection Practice [1.833]–[1.835].

MCA 2005, Sch 2, para 4(4)–(5) provides as follows:

‘(4) But sub-paragraph (3) does not have effect in relation to the will─

(a) in so far as it disposes of immovable property outside England and Wales, or

(b) in so far as it relates to any other property o

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