Statutory Will – ADS v DSM & others [2017] EWCOP 8

 In Wills

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Can P’s feelings & wishes be taken into account in making a statutory Will if possible undue influence affecting the situation?

Case Summary from LawSkills | Private Client specialist trainersThis case is particular to its facts and highlights that the making of a statutory Will is to be undertaken on behalf of the P by a COP judge undertaking a best interest approach to decision making as indicated by the Mental Capacity Act 2005 (MCA 2005). Such a case, of necessity, must come before the COP with all the facts and law clearly summarised and with proper weight given to the circumstances in which P’s feelings and beliefs were obtained.

The facts

While JKS still had capacity she had taken action against her son ADS and his wife, accusing them of undue influence in relation to the transfer of various properties. During the course of the proceedings, JKS lost her capacity to litigate & her Deputy (MH) was appointed her litigation friend.

JKS has two sons ADS and DSM. The Chancery proceedings were settled & one of the terms of the settlement was that MH would be appointed to manage JKS’s property & financial affairs generally and apply to COP for a statutory Will dividing her UK estate equally between ADS and DSM.

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The COP judge ordered JSK to be a respondent to the statutory Will application and that she be represented by the Official Solicitor. The Official Solicitor was strongly against the proposed terms of the statutory Will because it did not reflect JKS’s wishes and feelings.

The law

Charles J referred to the main authorities relating to the making of a statutory Will:

  • In Re P (Statutory Will) [2010] Ch 33
  • In Re M (Statutory Will) [2011] 1 WLR 344
  • Re G(TJ) [2010] 3005 (Fam)

All the above cases refer to the need for the decision maker to take any decision in P’s best interests. When a decision falls to be made under the MCA 2005 for P by definition P does not have capacity to weigh all the factors that are relevant to that decision. This inability is a circumstance that must be taken into account in determining the weight and the respective weight to be given to P’s wishes and feelings expressed before and after P loses the relevant capacity.

The Judges in the above cases state that the decision maker is entitled to take into account how P will be remembered after his or her death and whether P will be remembered for having done the right thing.

In this case the approach dictated by the MCA 2005 means the following factors must be considered:

  1. How JKS’s capacity at the time she made the relevant statements is to be taken into account in assessing their weight
  2. Whether assertions made by JKS in connection with her expressions of her testamentary intentions have a sound factual base and could be said to be rational (reasonably held), sensible and responsible
  3. Whether JKS was the victim of any inappropriate influence when expressing her testamentary wishes and feelings
  4. How the terms of, the reasoning behind, and any statements of testamentary wishes or feelings or representations made by or on behalf of JKS either (a) at the time of or (b) by, with the court approval, entering into a settlement of litigation in the Chancery Division of the High Court between her and ADS (and his wife) and approved by that court as being in JKS’s best interests should be taken into account and
  5. What disputes of fact have to be resolved to enable the COP to properly assess these factors

These factors should have been given proper weight and investigation and this was not done by the COP judge.

The decision

The Judge was reluctant to effectively re-open the Chancery proceedings to scrutiny as to which expressions of wishes & feelings were subject to undue influence. Charles J felt the Official Solicitor should be as honest as other people and so should take into account whether giving weight or effect to any of JKS’s statements would found an unconscionable result.

Charles J suggested that the following lessons should be learnt from this case:

  • The need to identify the issues of fact & law
  • The need to carefully consider how professionals who are asked to ascertain the wishes & feelings of P should be instructed and approach their task
  • When a settlement of civil proceedings is approved on behalf of a protected party who will or may become the subject of proceedings before the COP, the need to consider carefully what should be explained to a civil court asked to approve the settlement on behalf of P; indeed whether the judge in the civil proceedings should be advised to refer the statutory Will part of the proceedings to a COP judge, which has authority for making a statutory Will if the judge in the civil proceedings is not nominated to approve COP matters.

In the event Charles J decided that there was no binding contract under the civil proceedings that a statutory Will had to be made in a particular way. Rather, the settlement was not dependent on the COP authorising a statutory Will in the terms set out but it left the authorisation of such a Will to MH on application to the COP.

Nevertheless, the Chancery Settlement Agreement and the representations and expressions of wishes made around it are factors to be taken into account under the decision making process dictated by the MCA 2005.

He was very critical of all the parties and their representatives. He said that none of them had taken into account the 14 matters which he said they had needed to consider with care.

He took it upon himself to draft the Statutory Will, the details of which are not published.

Practice points

  1. Care needs to be taken to ensure an independent assessment is made of P’s feelings and beliefs without there being any likelihood of influence being exerted by the interviews taking place in the same house or venue where some of the interested parties may also be located.
  2. Preparation is the key to success and the Judge here was very critical of all the parties’ representatives for failing in the basic preparation of the matter as indicated by the Rule 5 of the COP Rules and in Practice Direction 13B.

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