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Statutory Wills

The statutory will is a relatively modern phenomenon. It is a will that a court can make when a person lacks capacity and it is desirable that the person does not die intestate. In some circumstances the court can authorize a substitute decision maker to make the will instead.

England has had such a power for some time. The English Mental Health Act 1959[1] gave the court power over a patient’s financial affairs and property and the Administration of Justice Act 1969[2] extended that power by giving the court authority to approve a will on behalf of a patient. However, this legislation required the Court of Protection to assume that the patient was not mentally challenged at the time the decision was to be made. Then the court had to consider what provision the patient would have made during that temporary state. In other words, the court had to consider what the patient himself would have done and make a substituted decision for him. This made the decision rather unrealistic.[3]

In 2005 England enacted the Mental Capacity Act 2005.[4] It continues the Court of Protection and empowers the court to determine whether a person has or lacks capacity,[5] and to make decisions for a mentally incapable person concerning his property and affairs, including making a will. In Re P[6] Justice Lewison, a High Court judge (sitting as a judge of the Court of Protection) held that under the 2005 Act the court no longer has to consider what kind of will the patient herself would have made if she had the necessary capacity. Instead the court need only consider the “best interests” of the patient.

Legislation authorizing the making of a will for a person who lacks capacity also exists in the Australian States,[7] in New Zealand, and in some American states.

So far, New Brunswick is the only Canadian jurisdiction that has enacted legislation authorizing statutory wills. The relevant sections of the Infirm Persons Act[8] authorize the court to make, amend, or revoke a will for a mentally incompetent person. Alternatively, the court may authorize the committee of a mentally incompetent person to do so. The sections provide:

3 (1) Subject to the provisions of the Mental Health Act,36 the court shall have full jurisdiction and authority over and in relation to the persons and estates of mentally incompetent persons, including the care and the commitment of the custody of mentally incompetent persons and of their persons and estates.

(4) The jurisdiction and authority of the court under this Act includes the power to make, amend or revoke a will in the name of and on behalf of a mentally incompetent person.

11.1(1) The power of the court to make, amend or revoke a will in the name of and on behalf of a mentally incompetent person shall be exercisable in the discretion of the court where the court believes that, if it does not exercise that power, a result will occur on the death of the mentally incompetent person that the mentally incompetent person, if competent and making a will at the time the court exercises its power, would not have wanted.

(2) Any will made or any amendment made to a will under this Act is for all purposes, including subsequent revocation and amendment, the will of the person in whose name and on whose behalf the will or the amendment is made.

15 The court may, by order, authorize and direct the committee of the estate of a mentally incompetent person to do in relation to the estate anything that such person might do if he had remained competent.

15.1 Where the court authorizes or directs the committee of the estate of a mentally incompetent person to make, amend or revoke a will in the name of and on behalf of the person, no will made, no amendment made to a will and no revocation of a will by the committee is valid until it is approved by the court.

There is only one reported case that addresses the will-making power under this legislation. Re MacDavid[9] was a case in which the attorney of an incapable person brought an application for an order granting approval of a will for the grantor of the power of attorney. The court dismissed the application on the ground that the legislation does not empower  an attorney to bring such an application.

More recently, law reform bodies in two provinces have considered whether statutory wills should be permitted in their jurisdictions. The Alberta Law Institute decided not to recommend the adoption of statutory wills in its Creation of Wills Report.[10] However, in its Final Report #139, Reform of The Wills Act, The Law of Property Act, and The Beneficiary Designation Act, Revisited[11] the Manitoba Law Reform Commission concluded that such a power should be added to the Wills Act.[12] But the recommendation only made provision for the court to make, alter, or revoke a will for a person who lacks testamentary capacity and did not empower the court to authorize a substitute decision maker to do so, subject to court approval. The Uniform Wills Act of the Uniform Law Conference of Canada (“ULCC”) also contains such a power.[13]

Although the legislation in the different jurisdictions is relatively new, it has been used effectively to frustrate the perfidious schemes of predators. Re Davey[14] is one example in which the court applied an earlier version of the English legislation. An elderly woman who was in the last stages of her life and whose capacity was compromised, was taken advantage of by a young male nurse. He married her and under the applicable legislation the marriage revoked her will by which she had left her estate to her family. Under the intestacy the male nurse would inherit her estate. The Official Solicitor was informed and quickly applied for a statutory will in the same terms as the revoked will without notice to the male nurse. The court approved the will, thus frustrating the male nurse’s plans. The woman died a few days later.

Re APB, ex parte Sheehy[15]  is a similar case. APB was  a very wealthy 91-year old who lacked testamentary capacity. He had three adult children, but separated from his wife in 1974 and the parties later divorced. She raised the children by herself and he paid no child maintenance. In previous wills, made when he had capacity, APB had made pecuniary gifts to a number of friends, to his children, and to a grandchild. When his health declined he was admitted to hospital. Several other persons became “friends” of APB in recent years. Most of them were financially motivated in befriending APB, assisted him in leaving the hospital in which he was a patient, and arranged for APB to meet with a solicitor to revoke his general power of attorney and to make a new will. APB’s litigation guardian, Peter Sheehy, applied under the Succession Act 1981 (Qld) for an order authorizing a will to be made on behalf of APB. The court granted the order. It held that, in light of their “disgraceful conduct” the will should make no provision for three of the “new friends”. Having regard to APB’s previously expressed testamentary wishes when he was capable, the court approved significant gifts to APB’s old friends. The court also approved substantial pecuniary gifts to APB’s children and a grandson and gave directions for other testamentary provisions. The will would thus revoke the recently-made new will and foil the flagitious machinations of the “new friends”.

In my opinion the enactment of a power to make a statutory will for incapable persons is desirable. It serves an important social need and will ensure that incapable persons will not die intestate needlessly. As the cases illustrate, a desirable side benefit of such a power is that it can also be used effectively to frustrate the nefarious plans of predators.

[1]    1959 (U.K.), c. 72, ss. 102-103, 107.

[2]    1969 (U.K.), c. 58, ss. 17, 18.

[3]    See, e.g., Re D(J), [1982] Ch. 237, in which Megarry V.C. set out the guiding principles the court should consider when deciding to make a statutory will under that legislation.

[4]    2005 (U.K.), c. 9.

[5]    Ibid., s. 15.

[6]    [2009] EWHC 163 (Ch.).

[7]    See, e.g., Succession Act 1981 (Qld), Part 2 (ss. 22-28). Part 2 was added by the Succession Amendment Act 2006 (No. 1 of 2006). Section 24(c) requires the court to determine whether a proposed will “is or may be a will” that the incapable person would make if he had testamentary capacity. This test is rather less complex than the test applied under the older English legislation: see McKay v. McKay, [2011] QSC 230 at para. 79.

[8]    R.S.N.B. 1973, c. I-8, ss. 3(1), (4), 11.1, 15, and 15.1 (enacted S.N.B. 1994, c. 40, ss. 1, 3). See further Eric L. Teed and Nicole Cohoon, “New Wills for Incompetents” (1997), 16 E.T.J. 1.

36       R.S.N.B. 1973, c. M-10.

[9]    2003 NBQB 400, 4 E.T.R. (3d) 50.

[10]   Report 96 (2009), Recommendation 6, p. 40, https://www.alri.ualberta.ca/wp-content/uploads/2020/05/fr096.pdf.

[11]   Reform of The Wills Act, The Law of Property Act, and The Beneficiary Designation Act, Revisited, Final Report #139, p. 9,  http://www.manitobalawreform.ca/pubs/pdf/additional/the_wills_act_revisited_final_report.pdf.

[12]   C.C.S.M. c. W150.

[13]   Uniform Wills Act (2015), https://www.ulcc.ca/images/stories/2017_pdf_en/2017ulcc0020.pdf, s. 8.2.

[14]   [1981] 1 W.L.R. 164 (Ct. of Protection).

[15]   [2017] QSC  201.

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