Mental Capacity Act (Northern Ireland) 2016

Section 115(4).

SCHEDULE 5 Property and affairs: supplementary provisions

Wills: introductory

1.  Paragraphs 2 to 4 apply in relation to the execution of a will on behalf of P by virtue of section 115.

Provision that may be made in will

2.  The will may make any provision (whether by disposing of property or exercising a power or otherwise) which could be made by a will executed by P if P had capacity to make it.

Wills: requirements relating to execution

3.—(1) Sub-paragraph (2) applies if under section 113 the court makes an order or gives directions requiring or authorising a person (“the authorised person”) to execute a will on behalf of P.

(2) Any will executed in pursuance of the order or direction—

(a) must state that it is signed by P acting by the authorised person;

(b) must be signed by the authorised person with the name of P and the authorised person’s own name, in the presence of two or more witnesses present at the same time;

(c) must be attested and subscribed by those witnesses in the presence of the authorised person; and

(d) must be sealed with the official seal of the court.

Wills: effect of execution

4.—(1) This paragraph applies where a will is executed in accordance with paragraph 3.

(2) The Wills and Administration Proceedings (Northern Ireland) Order 1994 (“the 1994 Order”) has effect in relation to the will as if it were signed by P by P’s own hand, except that—

(a) Article 5 of the 1994 Order (formalities for execution) does not apply; and

(b) in the subsequent provisions of the 1994 Order any reference to execution in accordance with Article 5 or execution in the manner in which a will is required to be executed is to be read as a reference to execution in the manner in which a will is required to be executed under paragraph 3(2).

(3) The will has the same effect for all purposes as if—

(a) P had had the capacity to make a valid will; and

(b) the will had been executed by P in the manner required by the 1994 Order.

(4) But sub-paragraph (3) does not have effect in relation to the will—

(a) in so far as it disposes of immovable property outside Northern Ireland; or

(b) in so far as it relates to any property or matter other than immoveable property if, when the will is executed—

(i) P is domiciled outside Northern Ireland; and

(ii) the condition in sub-paragraph (5) is met.

(5) The condition is that, under the law of P’s domicile, any question of P’s testamentary capacity would fall to be determined in accordance with the law of a place outside Northern Ireland.

Vesting orders ancillary to settlement etc

5.—(1) If provision is made by virtue of section 115 for—

(a) the settlement of any property of P, or

(b) the exercise of a power vested in P of appointing trustees or retiring from a trust,

the court may also make as respects the property settled or the trust property such consequential vesting or other orders as the case may require.

(2) The power under sub-paragraph (1) includes, in the case of the exercise of such a power, any order which could have been made in such a case under Part 4 of the Trustee Act (Northern Ireland) 1958.

Variation of settlements

6.—(1) If a settlement has been made by virtue of section 115, the court may by order vary or revoke the settlement if—

(a) the settlement makes provision for its variation or revocation;

(b) the court is satisfied that a material fact was not disclosed when the settlement was made; or

(c) the court is satisfied that there has been a substantial change of circumstances.

(2) Any such order may give such consequential directions as the court considers appropriate.

(3) Section 113(7) (variation and discharge of court orders) is subject to this paragraph.

Transfer of stock to appointee outside Northern Ireland

7.—(1) Sub-paragraph (2) applies if the court is satisfied—

(a) that under the law prevailing in a place outside Northern Ireland a person (“M”) has been appointed to exercise powers in respect of the property or affairs of P on the ground (however formulated) that P lacks capacity to make decisions with respect to the management and administration of P’s property and affairs; and

(b) that, having regard to the nature of the appointment and to the circumstances of the case, it is appropriate for the court to exercise its powers under this paragraph.

(2) The court may direct—

(a) any stocks standing in the name of P, or

(b) the right to receive dividends from the stocks,

to be transferred into M’s name or otherwise dealt with as required by M, and may give such directions as the court considers appropriate for dealing with accrued dividends from the stocks.

(3) In this paragraph “stocks” includes—

(a) shares, and

(b) any funds, annuity or security transferable in the books kept by any body corporate or unincorporated company or society or by an instrument of transfer either alone or accompanied by other formalities,

and “dividends” is to be construed accordingly.

Preservation of interests in property disposed of on behalf of person lacking capacity

8.—(1) Sub-paragraphs (2) and (3) apply if—

(a) P’s property has been disposed of by virtue of section 115;

(b) under P’s will or intestacy, or by a gift perfected or nomination taking effect on P’s death, any other person would have taken an interest in the property but for the disposal; and

(c) on P’s death, any property belonging to P’s estate represents the property disposed of.

(2) The person takes the same interest, if and so far as circumstances allow, in the property representing the property disposed of.

(3) If the property disposed of was real property, any property representing it is to be treated, so long as it remains part of P’s estate, as if it were real property.

(4) The court may direct that, on a disposal of P’s property—

(a) which is made by virtue of section 115, and

(b) which would apart from this paragraph result in the conversion of personal property into real property,

property representing the property disposed of is to be treated, so long as it remains P’s property or forms part of P’s estate, as if it were personal property.

(5) References in sub-paragraphs (1) to (4) to the disposal of property are to—

(a) the sale, exchange, charging of or other dealing (otherwise than by will) with property other than money,

(b) the removal of property from one place to another,

(c) the application of money in acquiring property,

(d) the transfer of money from one account to another,

and references to property representing property disposed of are to be construed accordingly and as including the result of successive disposals.

(6) The court may give such directions as appear to it appropriate for the purpose of facilitating the operation of sub-paragraphs (1) to (3), including the carrying of money to a separate account and the transfer of property other than money.

9.—(1) Sub-paragraph (2) applies if the court has ordered or directed the expenditure of money—

(a) for carrying out permanent improvements on any of P’s property; or

(b) otherwise for the permanent benefit of any of P’s property.

(2) The court may order that—

(a) the whole of the money expended or to be expended, or

(b) any part of it,

is to be a charge on the property either without interest or with interest at a specified rate.

(3) An order under sub-paragraph (2) may provide for excluding or restricting the operation of paragraph 8(1) to (3).

(4) A charge under sub-paragraph (2) may be made in favour of such person as may be just and, in particular, where the money charged is paid out of P’s general estate, may be made in favour of a person as trustee for P.

(5) No charge under sub-paragraph (2) may confer any right of sale or foreclosure during P’s lifetime.