D v R (Deputy of S) and S  EWHC 2405 (COP)
The recent decision of Henderson J sitting in the Court of Protection provides a useful judicial insight into Section 1(4) Mental Capacity Act 2005, the ‘basic human right’ to have the freedom to act in a manner, for example, which is unwise, capricious or designed to spite relations. Henderson J adopting the approach and ‘best interests’ test set out by Lewison J in Re P (Statutory Will)  EWHC 163 Ch expanding it to give comment upon the terms of Section 1(4).
The starting point, as set out in the principle S1(4), is that: ‘A person is not to be treated as unable to make a decision merely because he makes an unwise decision’.
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In this case the actions of Mr. S, an elderly man in his seventies, living alone and in ill health making cash gifts of nearly £550,000 in favour of D a lady, who was a legal secretary employed by his solicitors, were questioned by R (his daughter and Deputy). She issued Chancery Proceedings against D seeking to set aside the gifts on the grounds that they were procured by the undue influence of D.
D issued proceedings in the Court of Protection seeking a determination of whether Mr. S had the capacity to decide whether the Chancery Proceedings which had been issued should be continued. It was common ground that Mr. S had consistently repeated and clearly expressed his deeply felt wish that the Chancery proceedings should never have been begun and should not now be continued.
Between January 2006 and March 2007 Mr. S had made 15 gifts of money to D. Interestingly the gifts all predated a Will which was executed in April 2008. It was common ground that Mr. S had testamentary capacity in April 2008. The second difficulty was the unbridgeable division of opinion between very eminent medical experts (the case is arguably an excellent aid memoir of the need for medical experts to be properly instructed).
Mr. S was aware of the Chancery Proceedings and did not want them to continue. Henderson J however did not accept the submission that it was sufficient that Mr. S understood that he had a good claim to recover the gifts which he had made but that he did not want to take them back from D. By reason of the fact that the gifts could only be set aside by some vitiating factor it was important for the donor (Mr. S) to understand the information relevant to the decision whether or not to pursue the claim.
Henderson J concluded that as a minimum Mr. S had to understand the nature and extent of the relationship of trust and confidence which he arguably reposed in D, to the extent that it could be said that his gifts to her could not readily be accounted for by ordinary motives, and the general nature of the evidential burden resting on D to rebut the presumption.
He concluded that Mr. S lacked capacity in terms of section 3(1) of the 2005 Act because he was unable (a) to understand the information relevant to the decision (b) to retain that information (c) to use or weigh the information as part of making the decision – simply being aware of the proceedings and wanting them to be stopped was not enough. Mr. S needed to be able to stand back from the impugned transactions with sufficient detachment to truly understand the claim which Henderson J found he could not.
It is also of note that Mr. S appeared to have little understanding of the value of money and without prompting had no idea at all of the size of the gifts which he had made to D, Henderson J agreeing that the disparities and contradictions in Mr, S’s recollection was ‘staggering’ and ‘remarkable’.
The case is a stark reminder that the test of capacity is issue specific and that the Act recognises that the person may have capacity in relation to some matters (e.g. what to wear; what to eat) while lacking in capacity as regards others.
Henderson J identified section 1(4) as one of two important provisions within the 2005 Act (section 1(2) being the other) which underlined the basic principle of personal autonomy and freedom of expression which were embodied in the 2005 Act. He drew a parallel with Testamentary freedom and the right to make dispositions which were unreasonable, foolish or contrary to the general accepted standards of morality and right of a person in his lifetime to make gifts in the same manner .He concluded that while a decision which may be unwise or foolish is not in itself conclusive, it remains a relevant consideration which will be particularly relevant if there was ‘a marked contrast between the unwise nature of the impugned decision and the person’s former attitude to the conduct of his affairs at a time when his capacity was not in question’ .
It is notable that Henderson J acknowledged that his decision would bring nothing ‘but unhappiness’ for Mr. S in the short term. He did not make any findings as to whether the Chancery Proceedings per se were in Mr. S’s ‘best interest’ but reiterated the explanatory notes to the Mental Capacity Bill namely that:
‘Best interests is not a test of ‘substituted judgment’ (what the person would have wanted) but rather it requires a determination to be made by applying an objective test to what would be in the person’s best interests’.
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