3.1 As stated above, the Commission currently favours the United Kingdom model. This was introduced in the Administration of Justice Act 1969 (UK), which inserted new provisions into the Mental Health Act 1959 (UK).⁶ The wills provision was one of several relating to the management of the estates of persons coming under the ambit of the mental health legislation. The provisions allow a judge to make orders, give directions or authorise:

the execution for the patient of a will making any provision (whether by way of disposing of property or exercising a power or otherwise) which could be made by a will executed by the patient if he were not mentally disordered .⁷

There are two limitations on this power:

1. It cannot be exercised so long as the patient is a minor.

2. It is only exercisable where the judge has reason to believe that the patient is incapable of making a valid will.⁸

3.2 When making the will, the Court is required to have regard, as far as possible, to the actual views and wishes of the patient. Sir Robert Megarry, in the case of Re D(J) [1982] Ch 237, set out the following principles:

The first was that it is to be assumed that the patient is having a brief lucid interval at the time when the will is made. The second is that the patient is aware of the past and realises that as soon as the will is executed he or she will relapse into the mental state which previously existed. The third proposition is that it is the actual patient who has to be considered and not a hypothetical patient. Fourth, the patient is to be envisaged as being advised by a competent solicitor. Fifth, the patient is to be envisaged as taking a broad brush to the claims on his bounty rather than an accountant's pen.⁹

3.3 Once the will is made, it is to be signed by a person authorised to do so on the patient's behalf. This signature must be witnessed in the same manner as a will made in normal circumstances by a person with full testamentary capacity.

3.4 An application for a statutory will can be made by:

(a) the receiver for the patient;

(b) anyone who might benefit under a known will or under an intestacy;

(c) any person for whom the patient might be expected to provide for if he or she were not mentally disordered.¹⁰

3.5 The scheme also sets out who must be notified of the application and of the making of the statutory will. The person for whom the will is made is only informed of the will if and when the Court sees fit.

6. This Act has since been replaced by the Mental Health Act 1983 (UK), the relevant sections being sections 95-97.

7. id s96(1)(dd).

8. id s96(4)(a) and (b).

9. Re D(J) [1982] Ch 237 at 243.

10. R 21, Court of Protection Rules (UK).