Statutory Wills – NT v FS and others [2013] EWHC 684 (COP) – determining what was in the best interests of a mentally incapacitated person who needed a Will

 In Wills

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Mental Capacity Act 2005

The Court of Protection authorised: an application by a Deputy to execute a statutory Will on behalf of a mentally incapacitated person FS (‘F’); and, a lifetime gift of £50,000 to his mother TS (‘T’). The matter was complicated by the fact that the family, who were also potential beneficiaries of the Will, were in dispute as to who should benefit. All the parties to the application agreed that F did not have the requisite capacity to execute a Will and that it was in F’s best interests that a statutory Will was made. In reaching his judgment, Judge Behrens gave a cogent summary, derived from the leading authorities, on how to assess the best interests of a mentally incapacitated person in the context of a statutory Will application.

The Facts

The application was brought by NT, the Deputy for FS (‘F’). NT had been appointed as F’s Deputy on the 21st June 2011 after a contested hearing. On the 11th June 2012 NT made the application for a statutory Will, as F lacked the capacity to deal with his property and affairs and had no valid Will in place. F, a 74 year old, who suffers with Alzheimer’s and dementia, had been a professional rugby league player before making a successful living as a property developer. He was a secretive man who ‘compartmentalised’ his life. The estimated value of his property portfolio was approx. £3.1m.

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The Court was asked to determine the division of F’s estate between KE (‘K’),  his son and only child from his first long-term relationship, who would under the rules of intestacy be the sole beneficiary of F’s estate, his long-term partner NB (‘N’), who had cared for him tirelessly and would have a strong claim against his estate under the Inheritance (Provision for Family Dependants) Act 1975, his siblings IS (‘I’),BN (‘B’) and QS (‘Q’) and uncle LU(‘L’), who had all at different times assisted F in his property development business on an unpaid basis and his 95 year old mother T with whom F shared a close relationship and assisted  with the payment of her residential care fees.

In 2011 a manuscript was discovered, that appeared to be a Will made by F in 1986, giving pecuniary legacies to I, B, Q, K, Land N and leaving the residue to T. It was contended that the document was a feature of ‘magnetic importance’ in terms of determining the provisions of the statutory Will, although the Will had not been witnessed so was therefore not valid.

The Law

In determining how F’s estate was to be divided the Court had to consider sections 1(5), 4(2), 4(6) and (7), 16 and 18 (1) (i) of the Mental Capacity Act 2005 (MCA 2005).

1 Section 16 gives the Court power to appoint a Deputy or to make decisions on behalf of a person who lacks mental capacity. The powers conferred by section 16 include the execution for a mentally incapacitated person of a Will, set out under section 18 (1) (1). The decision to authorise the execution of a Will for a mentally incapacitated person is a decision which must be made by the Court itself and cannot be entrusted to a Deputy. 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 he had capacity to make it: paragraph 2 of Schedule 2.

2 Section 1 (5) specifies that any decision made for a person, who lacks capacity must be made in his best interests. Section 4 provides a checklist of factors that must be carefully considered, when deciding what is in the mentally incapacitated person’s best interests.

3. The Court also carefully reviewed the guidance that should be applied when considering a mentally incapacitated person’s best interests, which derived from the four leading cases; Re P (2010) Ch 33, Re M (2011) 1 WLR 344, Re G (TJ) (2011) WTLR 231 and Re J (C) (2012) WTLR  121

The Decision

Judge Behrens considered F’s moral obligations to the parties to the application and their respective claims on his estate. He also considered each party’s contribution to F’s property business and their individual relationship with F. Judge Behrens did not believe the 1986 document was a feature of ‘magnetic importance’, as the document had been written in 1986 and had not been properly executed as a Will and the relationships between the parties had changed significantly since this date. He did not regard the document as a starting point for the terms of the statutory Will.

After reviewing the relevant sections of the MCA 2005, the four leading authorities and making a value judgment on what was in F’s best interests, Judge Behrens set out the terms of the statutory Will.

N as the long-term partner of F was awarded 35% of the estate.  6 ¼% was given to each of F’s siblings I, Q and B. 3 ¼% was given to F’s uncle L.  The Will was to provide for substitution clauses sought by N, I, Q, B and L as they or their advisors would require. The balance of 43% was awarded to K with a substitution clause as he or his advisors would require.

The gift of £50,000 was also authorised to be paid to T.

In reaching his judgement, Judge Behrens gave a useful summary derived from the leading cases as to what was applicable in relation to a statutory Will application in determining the best interests of a mentally incapacitated person:-

  1. The overarching principle of the MCA 2005 is that any decision made on behalf of P must be in P’s best interests. This requires the Court to apply an objective test [Re P (2009) EWHC 163 paragraphs 36-38, Lewison J.
  2. The Court must follow the structured decision making process laid down by the 2005 Act. The Court must consider all relevant circumstances and in particular must consider and take into account the matters set out in section 4(6) and 4(7) MCA 2005.
  3. The Court must then make a value judgment giving effect to the ‘paramount statutory instruction’ that the decision must be made in P’s best interests (Re P paragraph 39).
  4. The MCA 2005 contains no hierarchy between the various factors to be borne in mind. The weight to be attached to different factors will inevitably differ depending on the individual circumstances of the particular case. There may however in a particular case be one or more features which, in the particular case, are of ‘magnetic importance’ in influencing or even determining the outcome – Re M [2009] EWHC 2525 Munby, J.
  5. When evaluating all the facts in determining what is in P’s best interests (the balance sheet approach) P’s wishes and feeling should be given great weight but there is no presumption in favour of implementing those wishes. Those wishes and feelings will be ‘case specific and fact specific’.
  6. It was noted that there were differing views in the authorities as to the relevance of P ‘as having done the right thing’ by his Will and for being remembered for this after his death.

Practice Points

  • Judge Behrens’ summary of the guidance of determining best interests in a statutory Will application is a useful tool for practitioners and illustrates the Court’s approach.
  • This important case also highlights the different views of the judiciary on P being remembered as ’having done the right thing’ by his Will after his death. Judge Behrens did not place any relevance on this point in this case, but noted that some authorities viewed this as significant factor that should be placed on the ‘balance sheet’ when determining P’s best interests.

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