Re D (Statutory Will)  EWHC 2159
The Mental Capacity Act 2005 requires those acting for persons who have lost capacity to make decisions in the best interests of the person lacking capacity. In situations where a statutory Will is requested the Court is in danger of encouraging numerous applications where the main issue is the validity of a new Will made when there was doubt about testamentary capacity or concern as to undue influence. This case sets out the applicable principles to be applied when authorising a Deputy to execute a statutory Will.
The applicant, Mrs C, is the elder daughter of the protected person, Mrs D, a widow with two other children (Mr D and Mrs S) who are half siblings of Mrs C.
Mrs D suffered a stroke in December 2003. Her affairs first came before the Court of Protection in 2007 when Mrs C applied to have an EPA in favour of Mr D revoked. It had purportedly been signed on 26 January 2003 and was registered on 27 April 2007. The Court stated it was clearly a forgery as it was supposedly signed on 26 January 2003 and yet the form was marked “Crown Copyright 2005, printed September 2005”.
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Early in 2008 a partner in a solicitor’s firm was appointed to act as Mrs D’s property and affairs deputy and by an order dated 14 January 2008 Mr D and Mrs S were ordered to deliver to Mrs D’s Deputy all her financial documentation and were forbidden from acting.
On 1 May 2008 the DJ Ashton ordered the return to the Deputy of various sums of money and investments held by Mr D and Mrs S subject only to the deduction of any expenditure incurred by them on behalf of their mother.
By 9 July 2010 a still significant part of Mrs D’s estate had not been properly accounted for.
History of Will Making
Mrs D had made various Wills, the first two through the same law firm:
- On 25 September 1995 she appointed two people as her executors and trustees; left a pecuniary legacy of £1,000 (free of IHT) to each of her grandchildren living at her death (at that time she had 11); made a specific gift of items of jewellery to each of her three children and left the residue to her three children in equal shares with a suitable substitution provision.
- On 7 July 2004 she appointed the same two people as her executors and trustees but this time left her entire estate to Mrs S. There was a contemporaneous letter of wishes saying she had not left anything to Mr D as in her opinion he already has sufficient assets of his own.
- 10 October 2006 – home made Will drafted without the help of solicitors although including some legal jargon, often inappropriately. It purported to appoint Mr D sole executor and trustee and to give half Mrs D’s estate to each of Mr D and Mrs S with no survivorship provisions.
At the hearing on 1 May 2008 DJ Ashton ordered to see a copy of the solicitors’ file relating to the making of the second Will. Having subsequently read it he ordered without a hearing that the Deputy was not to apply for a statutory Will as although the file note for the interview at which instructions for the 2004 Will were given was inadequate, the Will was made under the guidance and supervision of the same reputable firm of solicitors as made the 1995 Will.
“It is only the role of the Court of Protection to authorise a statutory Will when there has been a material change of circumstances or there is a vacuum. It is not the role of this Court to adjudicate upon disputes as to the validity of Wills. There is no basis for requiring the finance Deputy to apply for a statutory Will on the evidence presently available”.
- Mrs C applied to the Court of Protection in May 2009 for an order that Mrs D’s deputy be authorised to execute a statutory Will because she asserted her mother lacked capacity when she purported to make Wills in 2004 and 2006. She also argued in support of her application the behaviour of Mr D and Mrs S in seeking to influence Mrs D to their own advantage after her stroke.
DJ Ashton refused permission on 1 December 2009 and reiterated his earlier view that it would not be appropriate for the Court of Protection to become embroiled in a family dispute.
- Mrs C requested a reconsideration of DJ Ashton’s order on 25 January 2010. He permitted the application to proceed as a statutory Will application and recorded the Court’s satisfaction that Mrs D lacked both testamentary capacity and litigation capacity. It was also accepted that contrary to his previous comments there was a significant issue of interpretation to be addressed as to the appropriateness or otherwise under the Mental Capacity Act 2005 as to whether it was in a person’s best interests for the Court of Protection to authorise a statutory Will.
- As a result the matter was listed for hearing in the Chancery Divison dealt with as a hearing on paper only.
The proposed statutory Will provides for the appointment of Mr P and the Deputy as Mrs D’s executors and trustees. It provides pecuniary legacies of £1,000 (free of IHT) for each of Mrs D’s grandchildren living at the date of her death and for the residue of her estate to pass to her three children in equal shares with substitution provisions.
By correspondence Mr D, Mrs S (who originally objected to the legacies to the grandchildren) and the Deputy all agreed the contents of the proposed statutory Will.
- Although all interested parties consent to the terms of the proposed statutory Will, s.20(3)(b) MCA 2005 requires that the execution of a Will for a protected person is a decision which must be made by the Court itself.
- s.1(5) MCA 2005 requires that the Court acts in the protected person’s “best interests”, a concept explained by s.4 which requires the Court to consider all relevant factors:
- protected person’s past and present wishes and feelings (in particular, any relevant written statements made when there was capacity)
- the beliefs and values that would be likely to influence her decision if she had capacity; and
- the other factors that she would be likely to consider if she were able to do so
- the views, of anyone engaged in caring for the person or interested in her welfare and any Deputy appointed, as to what would be in her best interests.
- Making a decision in the “best interests” of a protected person is not necessarily the same as inquiring what she would have decided if competent. It is not a test of “substituted judgment” but a determination resulting from applying an objective test – per Lewison J in Re P (Statutory Will)  EWHC 163.
A protected person’s expressed wishes should not be lightly overridden but what will be in their “best interests” is that they should be remembered with affection by their family as having done “the right thing”.
- Mumby J in Re M  EWHC 2525 approved the judgement in Re P as having ‘compelling force’. He made three points:
- MCA 2005 laid down no hierachy as between the various factors listed in s.4 beyond the overarching principle of what was in the protected person’s “best interests”.
- The weight to be given to the factors will vary from case to case
- In any particular case there maybe one or more factors which were of “magnetic importance” in influencing the outcome.
- Mumby J also pointed out in Re M that the Court of Protection has no jurisdiction to rule on the validity of any Will. In this case Judge Hodge QC acknowledged DJ Ashton’s concerns as to the consequences of the Court of Protection directing the execution of a statutory Will in cases of dispute over capacity and undue influence but said that these concerns are factors which the Court may take into account when deciding whether or not to order the executors of a statutory Will. He said there could be no presumption that the Court should not direct the execution of a statutory Will in such circumstances.
- Under s.4(6)(a) MCA 2005 one of the relevant factors to be considered by a Court is the protected person’s past and present wishes and feelings including in particular relevant written statements made by him whilst competent. A previous Will is obviously a relevant written statement but the weight to be given to it will depend on the circumstances under which it was prepared. If it was clearly demonstrated that it was made at a time when the protected person lacked capacity no weight should be accorded to it.
The objective test of acting in the protected person’s “best interests” meant that the Court had to decide whether any statutory Will was doing the “right thing”. Clearly it would not do so if it bequeathed a contentious probate dispute to the person’s family and beneficiaries.
In essence, the Court of Protection may direct the execution of a statutory Will in any case where the validity of an earlier Will is in dispute but in doing so must take into account the existence and nature of any dispute and the Court’s ability to investigate the issues behind it. These are relevant factors to be taken into account.
Mrs D does not have capacity and will not do so in the future so the Court must act in her best interests. The 1995 Will was a clear, coherent, rational, sensible, responsible and realisable expression of her then wishes which were maintained for almost 9 years until she suffered her stroke.
The 2004 Will, although made by the same solicitors, offered no explanation as to why she abandoned the gift to her grandchildren and favoured only one of her children and no evidence addressing DJ Ashton’s criticisms of this Will were put to the Court.
There were even more serious concerns about the validity of the 2006 Will made some 8 months before the registration of the forged EPA. Again no explanations were offered as to the apparent change of mind of Mrs D.
Judge Hodge did not have to rule on the validity of those Wills but he could take into account the doubts raised about them when deciding what was in the best interests of Mrs D. He felt it was definitely in Mrs D’s best interests to authorise the execution of the statutory Will to put aside the possible problems of the earlier Wills and to have in place a document which had the consent of her Deputy, the Official Solicitor and all three of Mrs D’s children and thereby avoid a nasty probate dispute.
- Continued care is needed when instructed to change a rational Will in favour of a divisive one – is this a genuine change of heart or someone’s influence being brought to bear?
- Remember the jurisdiction of the Court of Protection is not wide enough to determine the validity or otherwise of earlier Wills but doubts about the validity may provide useful intelligence in supporting an application for a statutory Will.
© Gill Steel, LawSkills Ltd
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