Solicitor can seek power to execute will on behalf of incapax Adult

A Sheriff Principal has recently ruled that courts can grant authorisation to a solicitor to execute a will on behalf of an adult with incapacity where there is sufficient evidence that the Adult had capacity when the testamentary writing was drafted.

The process by which this is done is by intervention order authorising the execution of a will on behalf of an adult with incapacity. The test for incapacity along with procedure for intervention orders are contained in the Adults with Incapacity (Scotland) Act 2000.

In the appeal in question, Sheriff Principal Bruce Kerr QC summed up by stating “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.”

In so doing, this will ensure that the Adult does not die intestate which could see his estate being inherited by distant relatives which may not have been the Adult’s prior intention.