HT, Re Application In Respect Of [2005] ScotSC 38 (12 July 2005)

HT, Re Application In Respect Of [2005] ScotSC 38 (12 July 2005)

The court held that authorising the execution of a codicil to the will, reflecting the adult's known intentions, is permissible under section 53 of the Act and constitutes a benefit to the adult by ensuring her affairs are regulated in accordance with her wishes, even if she cannot appreciate the benefit due to incapacity.

Citation
[2005] ScotSC 38
Parties
Adult: Mrs H T; Applicant: [Applicant, surviving son]; Potential Beneficiary/respondent: [Daughter-in-law]
Jurisdiction
Scotland
Judgment Date
12 July 2005
Procedural Posture
Application for Intervention Order / Judgment on Application
Outcome
Application granted
Legal Topics
Intervention Orders, Testamentary Capacity, Wills and Codicils, Adults With Incapacity
Mental Capacity Law Succession Law Intervention Orders Testamentary Capacity Wills and Codicils Adults With Incapacity

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Parties

Mrs H T

Adult

[Applicant, surviving son]

Applicant

[Daughter-in-law]

Potential Beneficiary/respondent

Procedural Posture

Application for Intervention Order / Judgment on Application

Legal Issues

  1. 1 Whether the court should authorise execution of a codicil to an adult's will under section 53 of the Adults with Incapacity (Scotland) Act 2000 to reflect her known intentions despite her current incapacity.
  2. 2 Whether such intervention 'will benefit the adult' as required by section 1(2) of the Act.

Ratio Decidendi

The court held that authorising the execution of a codicil to the will, reflecting the adult's known intentions, is permissible under section 53 of the Act and constitutes a benefit to the adult by ensuring her affairs are regulated in accordance with her wishes, even if she cannot appreciate the benefit due to incapacity.

Court Disposition

Application granted

Orders

  • Authorisation for the applicant's solicitor to execute a codicil to the adult's will, ensuring the net free proceeds of the sale of her house are left to the applicant as intended.