XVT

The applicant is the court-appointed deputy for his brother, P, a person who lacks capacity, appointed in FC/OSM 465/2021. P lived with his late mother in her 3-room HDB flat. Under her will the flat went to another son, referred to as John. The applicant said John wanted P to stay on and transferred his rights in the flat to P. The deputyship application had told the court that John could not keep the flat because he had an HDB property of his own and that no sibling could take P in.

In FC/OAM 246/2025 the applicant asked the Family Justice Courts to direct the execution of a statutory will for P under s 23(1)(k) of the Mental Capacity Act 2008, so that John would be the sole beneficiary of the flat when P dies. All siblings but one consented, and the application was uncontested. P had never made a will.

1. Whether a statutory will leaving the flat to John would be in P's best interests under s 23(1)(k) of the Mental Capacity Act
2. Whether the court should direct a statutory will where the aim appeared to be to advance the family's wishes
3. Whether there were other lawful ways for the siblings to achieve the same result

The court accepted, as in BHR and Anor. v BHS, that best interests do not end at death, and noted that courts have stepped in where a will would lead to unjust outcomes, as in TCZ v TDA, TDB and TDC, where undue pressure had produced a will. Those cases involved an earlier will expressing the person's own wishes. Here P had made no will and played no part in any dealing with the flat. The application appeared to advance the family's interests, which is not the design of the provision.

The court accepted that a comfortable, stable home was in P's interests, but said the law cannot endorse family members acting ostensibly for P while in effect preserving their own interests. The mother had wanted the flat to go to John, and the family had not in 2021 truly intended the flat to stay in P's name, despite what the court was told. John's own family had not been consulted on the transfer either. One brother had stayed silent in both applications, and the applicant's offer to leave that brother's intestate share untouched was described as an odd position.

If P died first, his estate would pass on intestacy to his siblings, who could give their shares to John or make their own wills to that end. Parliament intended the power to be used sparingly, and granting this application, even uncontested, would set a bad precedent.

The court dismissed the application and declined to direct the execution of a statutory will on P's behalf.