Scottish Sheriff Court Decisions

SHERIFFDOM OF NORTH STRATHCLYDE AT PAISLEY

Paisley, 17 December 2013. The Sheriff Principal, having resumed consideration of the cause, Allows the appeal and Recalls the shorter of the two interlocutors of the sheriff dated 5 September 2013 (whereby he refused "crave 5" of the summary application); Remits the cause to the sheriff for the purpose of hearing proof in accordance with the requirements suggested by the sheriff principal in the note appended hereto; in respect of the expenses of the appeal procedure Finds the pursuer entitled to said expenses and that he be remunerated in respect thereof in accordance with the fees payable to a solicitor under Chapter 3 of the last published Law Society recommended Table of Fees at a unit rate which shall be subject to the approval and agreement of the Office of the Public Guardian or, failing such approval and agreement, as may be determined by the auditor of court.

BA Kerr

NOTE:

[1] In this summary application the solicitor acting for a person residing in a local authority care home who appears to have certain incapacities craves the court to grant certain intervention orders including in particular an order authorising him (by paragraph 5 of the first crave) "to execute on behalf of [that person] a will in accordance with a draft will appended as a schedule to this application". I refer hereinafter to the person as "the WI adult" or "the WI person" interchangeably (meaning thereby the adult person with incapacity or incapacities) because I feel uncomfortable with the habit of the legal profession in referring to such persons simply as "the adult" when I was always taught that the essential feature of attaining adulthood was that a person had by then shed all the incapacities associated with minority. Perhaps those engaged in this field of practice think they are following the terminology employed by the legislative draftsman in framing the Adults with Incapacity (Scotland) Act 2000, where copious reference is found to "an adult" or "the adult", but "adult" is therein defined (section 1(6)) not as a person with incapacity but as "a person who has attained the age of sixteen years". Indeed, if it were not for the modern insistence on avoiding the use of Latin and speaking instead in so-called "plain English", I would favour adherence to the traditional terminology whereby people were referred to simply as being "capax" or as "the incapax" without any feeling that these terms (which exactly encapsulated the truth of the situation) carried any pejorative implication. The same terminology has been adopted by the framers of the relative rules of court (Part XVI of Chapter 3 of the Summary Application Rules) but the definition there is not materially different.

[2] I should explain that the summary application before the court runs in the name as pursuer of a solicitor well-known in the field covered by the 2000 Act who, having published at least one textbook on the subject, has an acknowledged expertise in it. He acts for the WI adult in the present case and appears to be making this application on his instructions. His motivation in so doing is based in large part on his perception that the granting of the intervention order now sought is in accordance with the wishes of the WI adult and will if granted be to his benefit.

[3] The sheriff refused that part of the first crave referred to above and the applicant/pursuer now appeals to the sheriff principal seeking its grant on the basis of only slightly more information than was laid before the sheriff. The sheriff had granted a warrant for service on seven named persons or organisations having an interest and ordered what he called "a post-service hearing" on 2 August 2013. On that date the diet was attended by the pursuer and two representatives of the local authority, namely one of their solicitors and a mental health officer. That hearing, I was told by the pursuer and appellant, lasted just over one hour and during it the pursuer addressed the sheriff at his request on the competency of the court granting authority by way of intervention order to execute a will on behalf of a WI person. The sheriff then heard briefly from the solicitor representing the local authority and also more forcefully from the mental health officer, each of whom addressed the court. He then indicated an intention to consider the matter further and granted interim orders in respect of the other matters for which intervention orders are sought in the first crave. On 5 September 2013, having resumed consideration of the cause, he pronounced an interlocutor granting finally all the intervention orders sought in the first crave save that in paragraph 5 thereof and a second much shorter interlocutor refusing the intervention order sought in paragraph 5 to which he appended a note of six pages. At the hearing of the appeal on 31 October 2013 no other party appeared and I was addressed by the pursuer alone. There was therefore no contradictor.

[4] From the sheriff's note I find it not altogether clear how far the sheriff was in agreement with the propositions advanced to him by the pursuer but I have overall the impression that he was willing to accept that the Act does in principle permit the possibility of an intervention order being granted to an "intervener" to execute a will on behalf of a WI person in appropriate circumstances. Thus he refers without apparent disapproval or disagreement to a view of Sheriff JA Baird in one of his reported cases to the effect that an intervention order may authorise almost anything and he appears to go along with another view expressed by Sheriff Baird to the effect that there is no reason in principle why making a will should not be authorised by an intervention order provided that the general principles of section 1 of the 2000 Act are satisfied. He agrees expressly with that proviso of Sheriff Baird (that any application for such an intervention order must satisfy those general principles of section 1) but takes the view that in the present case that test has not been met. He quotes part of section 1(4) of the Act, focussing particularly on paragraph (b) of that subsection, and goes on (at the top of his sixth page) to describe the WI adult's situation in terms which seem to mean that he views the mental health officer (Mrs Fraser) as the "primary carer" of the WI adult before declaring that he cannot ignore "her professional opinion that the Adult is and was incapax", which opinion he adds has "no medical contradictor". He then notes, seemingly as further support for the view that the WI adult lacked or lacks the necessary capacity, that the solicitor who has furnished an AWI (10) report states therein that when in discussion with her [on 20 March 2013] about the draft will and who would be his heirs in intestacy the WI adult "was unable to indicate if the draft represented his current or previous wishes". At an earlier stage in his note the sheriff records the mental health officer in addressing him as having been "strongly opposed" to the granting of the power now sought to execute a will, saying inter alia that the WI adult had been a long-term recluse and not accepting that he had had capacity to give proper instructions for the making of a will and asserting positively that in her opinion he never had such capacity.

[5] For my part, having been addressed by the pursuer at much greater length than was the sheriff, I accept the proposition that the Act in principle enables the granting of power to an "intervener" to make and sign a will on behalf of a WI person if the circumstances be appropriate and provided certain things are proved to the satisfaction of the court (on which see further below). The Act, and in particular section 1 thereof, is very broadly worded and section 1(4)(a) would appear habile to allow views expressed by the WI person on who should inherit his estate at his death to be taken into account in a decision by the court on whether and if so what intervention order to make. If those views amount to a statement of testamentary intention made by a person having testamentary capacity at the time then I see no sufficient reason why effect should not be given to them through the medium of an intervention order if for some reason that person lacks the ability to put them into effect himself. It would appear from English authority to which I was referred that such a thing can be done in England (known apparently as a "statutory will") and, while I do not regard the English situation as exactly parallel, it would seem unreasonable to adopt the view that the same or a similar result cannot be achieved in Scotland when we now have a statute whose terms are broad enough to encompass the possibility.

[6] The matter has to be viewed I think in the context of the Scots law of succession. Permitting someone other than the testator himself to execute a will for him would be regarded by most Scots lawyers, correctly in my view, as a large and substantial step into a new era. It is therefore important that there should be adequate safeguards and in the end it is the court that has to be the keeper of those safeguards. It therefore seems to me necessary to stipulate that before granting such a power the court must be satisfied that the WI person had testamentary capacity at the time of expressing his views ("wishes and feelings" in the wording of the Act) as to who should inherit his estate on his death and that his expression of such views amounted to the declaration of a testamentary intention. The Act in section 1(4)(a) speaks of "present and past wishes and feelings" and to meet this wording in the context of making a will it is in my opinion necessary that the court should also be satisfied that at the time of its decision to grant such a power to execute a will the views and testamentary intentions of the WI person remained the same as before, whether or not he then retained a testamentary capacity.

[7] The foregoing opinion expressed by me runs counter to the first submission advanced by the pursuer as set out in his first ground of appeal. That submission was to the effect that it was unnecessary to consider whether the WI adult had capacity to instruct the preparation of a will because section 1(4)(a) of the 2000 Act on a proper interpretation required only that the WI person should have expressed some wishes and feelings concerning the disposal of his estate on his death for it to be open to the court to make an intervention order authorising the preparation and execution of a will to that effect on his behalf. It was submitted that, even if the WI person never had the capacity to make a will, the Act seeks to supply the means to make good that deficiency. With this submission I do not agree. By section 1(1) the Act enjoins those applying it to give effect to the principles set out in the following subsections when considering any intervention. By section 1(4) account is to be taken in determining on any intervention of views from various sources including the wishes and feelings of the WI person so far as ascertainable. It is to my mind noteworthy that the Act does not say that "the wishes and feelings of the adult" are to be given effect to, let alone that if they relate to the disposal of his estate on his death they are to be translated into a will to be executed on his behalf. The Act says merely that they are to be taken account of, which as I interpret the intention of the Parliament falls far short of requiring a will to be drawn up and signed to put them into effect. Where those wishes and feelings relate to disposal of an estate on death they may have the effect of disinheriting persons who otherwise would be entitled to inherit and of conferring such entitlement on others who otherwise would have no such entitlement. To allow such effects to flow from the expression of "wishes and feelings" requires in my view more than the mere expression of those wishes and feelings and should require the court to be satisfied that the WI person knew what the effects would be and intended those effects to flow therefrom, which is another way of saying that their expression should amount to the expression of a testamentary intention by a person having testamentary capacity (albeit he may for various reasons lack the capacity or ability to put his intentions into effect unaided by himself).

[8] A question then arises as to what is required for the court to be "satisfied" of these matters. That, it seems to me, must remain a matter for each sheriff in the circumstances of each such case as comes before him. In deciding whether to allow someone other than the testator himself to execute a will for him it may take some fairly substantial body of evidence to satisfy the court. I had the impression that the pursuer in addressing me thought, or at least hoped, that it would be sufficient for the purpose of persuading the sheriff principal to rely on a body of written evidential material laid before the court, including his own copious averments set out in his summary application. No doubt in many applications for intervention orders or guardianship orders made to courts in Scotland on a daily basis since the inception of the 2000 Act decisions have been made properly enough by sheriffs on the basis of such evidential material and I do not suggest that in most cases anything more should be required. I have the impression from his note that the sheriff here thought that to be the proper way to proceed, although he was willing to take account also of an utterance (a type of ex parte statement really) made by the mental health officer in addressing him from the bar of the court. In the present case however, for reasons explained more fully below, I do not think evidential material of this sort to be enough and instead I consider that something more akin to actual proof is required. I am willing to say that the pursuer's averments in his summary application (particularly those set out in paragraphs 31 and 31A) would in my view be adequate if taken pro veritate to justify the court in granting him the intervention order which he seeks were it not for the absence of any positive averment of the WI adult's possession at relevant date(s) of the necessary testamentary capacity: that is to say, if the pursuer were in a position to make that averment and satisfy the court of it, they would in my opinion be sufficient if proved to meet the requirements discussed above and so warrant the granting of an intervention order in terms of paragraph 5 of the first crave. In the circumstances of the present case as they have developed they will however have to be proved and for this purpose I intend (see again below) to remit the case to the sheriff. It is, in short, not enough for the pursuer simply to reiterate his averments from the bar of the court, refer to various documents lodged in support of them and expect the sheriff or sheriff principal to view them as established. In the present case moreover they appear to be contested from at least one source, namely the mental health officer, albeit the local authority have not as yet lodged written answers to that effect.

[9] I should add before proceeding further a word about "capacity". I am in agreement with certain things said to me at the hearing of the appeal by the pursuer on the view which has to be taken in the modern world of what is meant by "capacity". In earlier times lawyers tended to assume, I think, that a person was either capax or incapax in general terms and that if he was incapax then at the very least it was necessary to have a curator bonis appointed to manage his affairs. The medical profession may have had a more sophisticated understanding of or approach to these matters but, if so, that greater sophistication did not inform the approach of most lawyers. Things have now moved on and it seems to be appreciated even by the lawyers that people can have differing degrees of capacity for different purposes at the same time. Thus a person may have testamentary capacity while no longer having the capacity to manage his financial and property affairs or vice versa. A person may have one capacity but not another and it appears that this is recognised in the scheme of the 2000 Act which clearly envisages degrees of intervention being authorised to meet the differing degrees and types of incapacity which will arise in the case of different individuals. This may have some importance in at least one respect in the present case. I was shown (although the sheriff was not) a letter dated 6 August 2009 written by the Director of the Mental Welfare Commission for Scotland (Dr Lyons) to the pursuer following upon a visit by that medically qualified person on 30 July 2009 to the WI adult in the present case. This was produced to me as a piece of evidence tending to show that the WI adult had at that time at least the necessary capacity impliedly (I took it) to instruct the drawing up of a will to reflect his testamentary intentions. The letter however speaks of Dr Lyons' opinion that the WI adult possessed at that time the capacity to instruct legal representation (which he should be considered to have unless challenged by appropriate legal process). I am not inclined to think however that that opinion, albeit from a high authority, can take the pursuer very far in his present application where it is necessary in my view to establish that the WI adult had testamentary capacity. Capacity to instruct legal representation generally is not to my mind the same thing as capacity to instruct the drawing up of a will, albeit the latter exercise will often involve instruction of a lawyer.

[10] Turning now to the detail of what has happened in the present case, I have to say that I find the sheriff's handling of the matter to be less than fully satisfactory for a number of reasons. [I should record, although I regard it as entirely incidental, that the pursuer before me denied having told the sheriff that there might be difficulties in trying to trace the relatives of the WI adult (see the sheriff's note at page 4 paragraph 1). Indeed it is apparent that the pursuer has been in direct contact with the closest relatives by e-mail during the summer of 2013, a pair of brothers having known addresses in Yorkshire.]

[11] It is apparent from the sheriff's note that, having been addressed by the pursuer on the competency of granting an intervention order in the terms now sought, the sheriff then quite properly allowed the solicitor representing East Renfrewshire Council to address him and then (perhaps less properly) proceeded to allow the mental health officer to address him from the bar of the court in an utterance containing elements of factual statement and of medico-legal opinion on the testamentary capacity of the WI adult. This course seems to have been preferred to that of allowing the solicitor to lead evidence from her in the witness box, which might then have been cross-examined. Not only was there thus no opportunity for cross-examination or challenge of the medical health officer's assertions, there was equally no right of reply or response offered to the pursuer who was hearing this expression of professional opinion for the first time without any prior notice in the way of averment in any set of answers lodged in process. The pursuer, himself a solicitor, could of course have spoken up and sought a right of reply but did not do so. This moreover was almost certainly not being viewed by the sheriff as an evidential hearing, but it appears to me that at this point the sheriff should have paused and considered that, being faced with apparently conflicting assertions on a matter of central importance (whether the WI adult had testamentary capacity to express a testamentary intention), it would be appropriate to allow parties an opportunity to place medically qualified testimony before the court on that question before deciding whether or not to grant the intervention order sought by the pursuer. The sheriff instead appears to have proceeded directly to take the matter to avizandum and then decide it on the basis only of the material before him at that hearing.

[12] The sheriff seems from his quotation of section 1(4)(b) of the 2000 Act at the foot of the fifth page of his note and from the first paragraph on his sixth page to have viewed the mental health officer as in effect the "primary carer" of the WI adult (of whose views therefore the court is to take account), but I entertain doubt as to the correctness of so viewing her. The true "primary carer" in the circumstances is East Renfrewshire Council as a corporate entity and it is questionable whether the mental health officer should have been permitted by the sheriff to be heard at all save as a witness led on behalf of the local authority at an evidential hearing.

[13] The sheriff at the end of his first paragraph on page 6 of his note observes that "there is no medical contradictor" of the professional opinion of the mental health officer. The first question however ought to be what weight should be attached to the professional opinion of the mental health officer, who is not a medically qualified person but instead a social worker, albeit one with a developed expertise in the care and treatment of persons suffering from mental incapacity. The question whether a person has or has not mental capacity or suffers from mental incapacity is essentially one for the opinion of a medically qualified practitioner, as is apparent from the terms of the Mental Health (Care & Treatment) (Scotland) Act 2003 (see for instance sections 57 and 58 thereof). In my opinion therefore it was not proper for the sheriff to proceed on the professional opinion of a mental health officer alone to the conclusion that the WI adult in the present case is and was incapax and never had the necessary testamentary capacity. That is in effect what the sheriff has done when he should have postponed the reaching of a conclusion one way or the other on that matter until he had heard testimony from one or more medical practitioner(s). In so doing the sheriff in my view fell into legal error. He was faced at his "post-service hearing" with a conflict of opinion between two people, one a solicitor and the other a mental health officer, who were neither of them fully or properly qualified to give a definitive opinion on the question whether the WI adult here had testamentary capacity. For some reason he chose to prefer the opinion of the mental health officer, saying he did not think he could ignore her professional opinion that the WI adult is and was incapax, which opinion he added had no medical contradictor. It did however have a contradictor in the shape of the pursuer, quantum valeat, who is a qualified solicitor of long experience in dealing with the cases of WI persons, and that in my opinion should have inclined the sheriff to consider allowing parties present the opportunity to bring before the court properly qualified medical opinion on the matter. I do not think this to be a situation, such as some types of civil litigation might sometimes be, in which a failure by the pursuer to lay sufficient evidence before the court at the first hearing must mean he fails at the first hurdle because the material produced by him at that stage is gainsaid by another person permitted to address the court. Instead it is I think incumbent on the court in making decisions in AWI cases to put the interests of the WI person, who will not usually be a party to the proceedings, first in deciding what procedure should best be followed.

[14] The sheriff did not decide the matter against the pursuer purely on the say-so of the mental health officer whose professional opinion he thought he could not ignore. He placed reliance also on a statement contained in an AWI(10) report apparently dated 27 March 2013 and compiled by a suitably qualified solicitor to the effect that the WI adult when she spoke to him about the draft will "was unable to indicate if the draft represented his current or previous wishes". This statement appears at page 8 of the report but it does so as part of a much longer passage under the heading "Execution of Will" from which, read as a whole, it appears that his unwillingness to give the indication sought is probably or could well be a manifestation of his inability to bring himself to finalise the execution of a will because of the mental illness from which he suffers. From all that is said at page 8 under the heading "Execution of Will" (and also at page 4, where there is a misprint) it appears that the WI adult understood in March 2013 that intestacy would result in his estate being inherited by distant relatives who he did not wish to inherit and that he was content for the beneficiaries named in the draft will to inherit, with the reservation only that there might be others whose names he could not now remember who he would wish also to inherit. Read overall I do not read this passage as supporting the view that he did not have testamentary capacity when the will was drawn up or as indicating that he has any different testamentary intention now (ie in 2013) than he seems to have had then (in 2009). His only difficulty in the matter is an inability to bring himself on account of his mental illness to the decisive point of adhibiting his signature to the principal will as engrossed. I consider therefore that the sheriff's reliance on the single statement quoted by him from the solicitor's AWI(10) report is misplaced in taking that statement out of its necessary surrounding context.

[15] It appears to me therefore that what is now required is the holding by the sheriff (not necessarily the same sheriff and perhaps preferably a different sheriff) of a proof at which testimony of an appropriately qualified sort could be led by the pursuer and any other party who had properly entered the process and lodged answers on the question(s) whether the WI adult had testamentary capacity at any appropriate time between October 2009 and the date of the proof and whether the views expressed by him were so expressed as to amount to an expression of testamentary intention. As stated above I consider it necessary for the court to be satisfied that the WI adult had testamentary capacity when he expressed views amounting to a testamentary intention and that his testamentary intention remains the same now (ie as close as reasonably possible to the proof) as it was then. I am clearly of the view that testimony of one or more medical practitioner(s) is required for this purpose but that alone may not be enough: the concept of testamentary capacity may go beyond that of a merely mental capacity because it contains also a legal element best understood by lawyers familiar with the act of making a will or giving instructions therefor. There may therefore be need for some evidential input from person(s) having legal qualifications as a practising solicitor or advocate.

[16] I do not think this requirement for proof is an excessive demand made by the sheriff principal in the circumstances of the present application. The making of a will ab initio on behalf of a WI person by an "intervener" so empowered by the court is in Scotland a large step, albeit one within the provisions of the 2000 Act in my opinion, and therefore one not to be taken lightly. The persuasion of the court to allow such a step requires accordingly, especially in a case where there appears to be some dispute about the matter, more than mere averment or assertion backed up by what might be termed "evidential material" and I think calls for actual proof before the sheriff that the essentials exist, as mentioned above, of the circumstances appropriate for the granting of such an intervention order. It might be thought by some that the sheriff principal is calling for a sledgehammer to be taken to crack a nut, but I would not agree. I appreciate that in the present case the probable value of the WI adult's estate on his decease may well not be great (little more probably I was told than the value of his house or its site) but that will not always be so and there could be cases in which the making of a will on behalf of a WI person will deprive intestate heirs of substantial sums in favour of new beneficiaries or legatees. Where there is no dispute and all professional opinion tends in the same direction it may be reasonable to grant an intervention order of the type sought here with a minimum of ceremony and only basic evidential material. Where however there is an element of dispute it seems to me wrong that an intervention order authorising the making of a will should be granted merely on the say-so of a solicitor, albeit one well-versed in AWI procedures, or refused merely on the say-so of a mental health officer, albeit a professional person in her own particular field.

[17] Lastly I should add that I am of course aware that in recalling the sheriff's interlocutor and ordering a proof I am interfering with the sheriff's discretion to order or follow such procedure in the case as he may think fit. It is well known that in a summary application the sheriff has a discretion to adopt whatever procedure he may think most appropriate to dispose of the application in accordance with the requirements of justice. That discretion must however be properly exercised if it is to remain inviolate from the attentions of an appellate court. In the present case I consider that the sheriff has exercised his discretion improperly. He was faced with a conflict of views on an important matter of fact (whether the WI adult had testamentary capacity or not), yet he elected to decide the matter without any evidential hearing and on the basis only of averment or of statements made to him from the bar of the court. He had regard also to a brief statement in a report by a solicitor taken away from its surrounding context. The matter is truly one for the opinion evidence of medically qualified practitioners and the averments or statements on which the sheriff elected to proceed came from persons not so qualified. That in my view constituted a legal error. It might also be fairly characterised as an unreasonable exercise of his procedural discretion. I have made above various other criticisms of the sheriff's handling of the matter which call in question the correctness of his exercise of procedural discretion but the decision to come to a decision in the circumstances without hearing appropriate evidence was the greatest of those flaws. However characterised I consider that mistake to amount to a flawed exercise of the sheriff's discretion and thus to open up his decision to review by the sheriff principal.

[18] From the foregoing it will be seen that I do not agree with the proposition contained in the pursuer's first ground of appeal stated in his note of appeal but do agree with that contained in his second, except that I do not accept the implication that the sheriff could and should have granted the pursuer's application on the basis only of the evidence and information referred to by the appellant therein. I think the sheriff was wrong to refuse as he did the pursuer's application but I am unwilling simply to dismiss it here and now for lack of an averment about testamentary capacity and think it appropriate instead that the pursuer should in the circumstances have an opportunity to consider whether he can satisfy the court on that matter. I shall accordingly now recall the sheriff's shorter interlocutor of 5 September 2013, whereby he refused "crave 5" (meaning thereby paragraph 5 of the first crave) of the summary application, and remit the application to the sheriff for an appropriate proof. A number of ancillary matters arise from this decision. In the first place, I think it preferable that any such proof be heard by a different sheriff since the first sheriff, whose interlocutor I am now recalling, has clearly formed a view of the matter which may not be readily dispelled by the hearing of more appropriate evidence. In the second place, consideration should I think be given to the possibility of allowing other parties now to lodge answers even if they have not already done so and would be doing so late in light of the fact that the sheriff principal is now directing that a proof be held and what issues ought to be addressed thereat. In the third place, if there is to be no contradictor forthcoming from any other party, it appears to me that this is a situation in which it may be beneficial for the court to appoint an amicus curiae to assist its deliberations. Such an appointment has recently been approved as a possible procedure in the courts of Scotland in appropriate cases by a set of guidelines issued in late August or early September 2013 from the Lord President's Private Office. Consideration should be given to making such an appointment here, where it appears that the appropriateness and competency is being properly addressed for the first time in Scotland under the 2000 Act of the court granting an intervention order to enable an appointed "intervener" to draw up from scratch a will and then execute same on behalf of a WI person.

[19] With regard to the expenses of the appeal procedure I was asked to make an order similar to that made by the sheriff in the longer of his two interlocutors dated 5 September 2013 and am willing to do so on the view that the pursuer in his appeal has been successful to the extent of having the sheriff's shorter interlocutor of 5 September 2013 recalled, albeit his full motion for an immediate grant forthwith of the intervention order sought has not been granted.

[20] Mr Ward toward the end of the hearing of the appeal made a complaint to me about the length of time which had been allowed to elapse in the present case between the lodging of the summary application and the first hearing held by the sheriff on 2 August 2013, which he said was in breach of the timescales laid down by the rules. On this matter I am inclined to say no more than that sheriffs and court staff should be mindful of such timescales and of the need to adhere to them, which may in some cases be of great importance. In the present case however it does not appear to me that any lapse which may have occurred in this respect has occasioned any prejudice to any party.

[21] The views formed by the Sheriff Principal on the main issues raised by this appeal (heard without a contradictor) may be summarised as follows:-

(i) An intervention order authorising the execution on behalf of a WI person of a will may competently be granted by the court under the Adults with Incapacity Act 2000 in appropriate circumstances.

(ii) The sheriff was correct in thinking that he could not proceed to grant such an intervention order solely by reference to the principles set forth in section 1 of the said Act but that he had to consider also whether the WI adult had capacity to give instructions regarding preparation of a will.

(iii) The sheriff was incorrect in determining the question before him solely (or almost solely) by reference to an oral submission made to him by a mental health officer at the bar of the court.

(iv) In order to justify the granting of an intervention order such as that sought here by the pursuer the court has to be satisfied on appropriate evidence that the WI adult had testamentary capacity when he expressed a testamentary intention which remains the same at the time of granting that order.

BAK