The Scottish courts can authorise a solicitor to execute a will on behalf of an adult who lost capacity after expressing his or her testamentary intention.  Appropriate evidence must also be produced to justify such an intervention order.

This is from the judgement:

“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.”

An article on this matter from the Law Society of Scotland journal can be found here.

The full judgement can be found here.