The rise of statutory wills and the limits of best interests decision-making in inheritance

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This article addresses the under-researched phenomenon of ‘statutory wills’ executed under the Mental Capacity Act 2005 (MCA) for persons with impaired mental capacity. It argues that the legal justification for statutory wills requires reconsideration, given the limitations of ‘best interests’ decision making in this area. Part 1 provides an overview of the historical development of statutory wills, and their relationship to testamentary freedom and intestacy to argue that statutory wills reflect changing social understandings of ‘deserving’ inheritance alongside a desire for tax efficient succession planning. Part 2 moves on to explore the rising contemporary significance of this form of testamentary document. It considers the shift from the previous ‘hypothetical substituted judgment’ test to the contemporary ‘best interests’ orientation of the MCA. Part 3 then turns to assess the problems that this new best interests approach raises, and its (in)compatibility with the right to equal recognition before the law under Article 12 of the UN Convention on the Rights of Persons with Disabilities, arguing that the pervasive reach of best interests in contemporary mental capacity law requires reconsideration. The paper concludes by suggesting potential solutions to these intersecting problems and argues that a more limited framing of the power to execute statutory wills is required in order to appropriately balance the rights of individuals with disabilities with practical considerations around the distribution of assets on death.
Original languageEnglish
Pages (from-to)945-970
JournalModern Law Review
Issue number6
Early online date2 Nov 2015
Publication statusPublished - 2 Nov 2015


  • best interests
  • statutory wills
  • inheritance
  • mental capacity


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