Re M; ITW v Z [2009] EWHC 2525 (Fam)

Statutory will case.


Hearing date : 6 October 2009

Judgment date: 12 October 2009

Before: Munby J

Mr Howard Smith (instructed by Farrell Matthews & Weir) for the Applicant (M's Deputy)

Miss Barbara Rich (instructed by the Official Solicitor) for the Second Respondent (M)

Miss Charlotte Edge (instructed by Withers LLP) for the Third – Ninth Respondents (the Charities)

The First Respondent (Z) in person

Summary from Court of Protection 2009 Report

Mr Justice Munby considered a statutory will application in a case in which an elderly woman had been the victim of financial abuse by a neighbour. He held that the weight to be attached to P’s wishes and feelings will always be case-specific and fact-specific. In some cases, in some situations, they may carry much, even, on occasions, preponderant, weight. In other cases, in other situations, and even where the circumstances may have some superficial similarity, they may carry very little weight. One cannot, as it were, attribute any particular a priori weight or importance to P’s wishes and feelings; it all depends upon the individual circumstances of the particular case. And even if one is dealing with a particular individual, the weight to be attached to their wishes and feelings must depend upon the particular context; in relation to one topic P’s wishes and feelings may carry great weight whilst at the same time carrying much less weight in relation to another topic. Just as the test of incapacity under the 2005 Act is, as under the common law, ‘issue specific’, so in a similar way the weight to be attached to P’s wishes and feelings will likewise be issue specific. He said that there was no hierarchy of factors in section 4 of the Mental Capacity Act 2005, though there may be a single factor of “magnetic importance”. Like Mr Justice Lewison in Re P, he considered that the previous case law on statutory wills was “best confined to history,” and he endorsed the suggestion that a testator would wish to be remembered with affection for having done the right thing.


Re M (Statutory Will)

[2009] WTLR 1791, (2009) 12 CCL Rep 635, [2009] EWHC 2525 (Fam)B

[2010] 3 All ER 682

Duplicate Bailii citation number: [2009] EWHC 2525 (COP)B

External link


Judiciary of England and Wales, 'Court of Protection: 2009 report' (10/6/10) - Summary on pages 16-17