APPLICATION IN RESPECT OF B.H.UNDER THE TERMS OF THE ADULTS WITH INCAPACITY (SCOTLAND) ACT 2000 [2010] ScotSC 198 (23 December 2010)

APPLICATION IN RESPECT OF B.H.UNDER THE TERMS OF THE ADULTS WITH INCAPACITY (SCOTLAND) ACT 2000 [2010] ScotSC 198 (23 December 2010)

The court has no inherent or statutory power to alter a will or direct a codicil for an adult with incapacity unless a relevant party applies and there is clear evidence of the testator's intention. In this case, the evidence showed the adult intended the house only to pass to the beneficiary if owned at death, and nothing if sold, so no alteration to the will was authorised.

Citation
[2010] ScotSC 198
Parties
Applicant: Applicants (names not specified); Adult With Incapacity: B.H.; Potential Beneficiary: Named individual in will (potential beneficiary, name not specified)
Jurisdiction
Scotland
Judgment Date
23 December 2010
Procedural Posture
Application Under Adults With Incapacity (scotland) Act 2000 / Hearing on Appointment of Guardians and Related Directions
Outcome
Application for appointment of guardians and authority to sell house granted; no alteration to will authorised.
Legal Topics
Guardianship, Testamentary Intent, Powers of Court Under Adults With Incapacity (scotland) Act 2000, Sale of Property to Fund Care, Alteration of Will for Incapacitated Adult
Elder Law Wills and Probate Mental Capacity Law Guardianship Testamentary Intent Powers of Court Under Adults With Incapacity (scotland) Act 2000 Sale of Property to Fund Care Alteration of Will for Incapacitated Adult

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Parties

Applicants (names not specified)

Applicant

B.H.

Adult With Incapacity

Named individual in will (potential beneficiary, name not specified)

Potential Beneficiary

Procedural Posture

Application Under Adults With Incapacity (scotland) Act 2000 / Hearing on Appointment of Guardians and Related Directions

Legal Issues

  1. 1 Whether the court can authorise alteration of a will (by codicil or otherwise) for an adult with incapacity to reflect changed circumstances
  2. 2 Whether the sale of the adult's house defeats a specific bequest and if the court can direct a codicil to adjust the residue clause
  3. 3 Whether there is clear evidence of the testator's intention regarding the bequest

Ratio Decidendi

The court has no inherent or statutory power to alter a will or direct a codicil for an adult with incapacity unless a relevant party applies and there is clear evidence of the testator's intention. In this case, the evidence showed the adult intended the house only to pass to the beneficiary if owned at death, and nothing if sold, so no alteration to the will was authorised.

Court Disposition

Application for appointment of guardians and authority to sell house granted; no alteration to will authorised.

Orders

  • Appointment of lay individual as welfare guardian
  • Appointment of solicitor as financial guardian