G v Official Solicitor [2006] EWCA Civ 816

When considering a statutory will, the function of the court is to do for the patient what the patient would fairly do for herself, if she could and acting with the benefit of advice from a competent solicitor; on the facts, including the family disputes, she would have appointed the independent receiver as executor of her estate. [Caution.]

Note

See paras 20 and 21 of Re P [2009] EWHC 163 (Ch):

20. In G v Official Solicitor [2006] WTLR 1201 the Court of Appeal approved the principles laid down by Megarry V-C in the context of the making of a statutory will under the Mental Health Act 1983. Mummery LJ summarised the approach by saying that:

"The important point for present purposes is that it is the actual individual patient who has to be considered, the function of the court being to do for the patient what the patient would fairly do for herself, if she could and acting with the benefit of advice from a competent solicitor."

21. I do not (and could not) question any of this learning. But in my judgment it all stems from the statutory instruction that the court must do what the patient himself might be expected to do if he had not been mentally disordered. The Acts thus required the substituted judgment approach. The Mental Capacity Act 2005 does not contain this statutory instruction, and adopts a different, and structured, decision making process.

External link

Bailii