Strand, London, WC2A 2LL
B e f o r e :
| In the Matter of the Mental Capacity Act 2005
And in the Matter of M
|- and -
(2) M (by her litigation friend the Official Solicitor to the Senior Courts of England and Wales)
(3)-(9) VARIOUS CHARITIES
Miss Barbara Rich (instructed by the Official Solicitor) for the Second Respondent (M)
Miss Charlotte Edge (instructed by Withers LLP) for the Third – Ninth Respondents (the Charities)
The First Respondent (Z) in person
Hearing date : 6 October 2009
Crown Copyright ©
MR JUSTICE MUNBY
This judgment was handed down in private but the judge hereby gives leave for it to be published in this anonymised form
Mr Justice Munby :
i) M's personal welfare: I found that Z had broken the undertakings he had given me as embodied in the order I made in October 2008. I referred to Z's"complete inability or unwillingness … to understand the pressing welfare requirements of the … elderly lady for whom he puts himself forward as the most appropriate carer, a complete inability to prioritise her needs before his own wishes and feelings, and in particular a complete inability or unwillingness on his part to appreciate that whether or not he agrees with the order of the court, the court having made that order it was his responsibility as the carer of the patient to make the inevitably unhappy task of complying with the court order as easy from her point of view as lay within his power."I also referred to his"striking inability or unwillingness … to understand and promote her welfare, let alone to prioritise her welfare to his own wishes and feelings."
ii) M's financial affairs: I found that Z had "failed completely" to comply with the directions in my order of October 2008, referring in this connection to what I described as his
"total non-compliance with, in circumstances I can only describe as defiance of, the order I made"
and to his
"prevarication, obfuscation and time-wasting delay [in] answering questions which cry out for answer".
This reflected comments I had earlier made in my judgment of 12 May 2008 when, referring to the fact that Z "has had many opportunities to give details, in particular in relation to the £26,000 and the £32,000", I drew attention to his "seeming unwillingness to engage frankly in the process and to make the fullest and frankest disclosure that was open to him."
"is someone in whom the court cannot, as present, have that trust and confidence which in this kind of situation the court must have if such a person is to be in a caring relationship with the patient."
"Z seeks unsupervised contact. That, in my judgment, is unthinkable in the context of a carer who … has … forfeited the trust and confidence of the court. Should there be supervised contact? The answer to that, in my judgment, is no."
"someone without a compass in her life … easily led … primarily motivated by insecurity in her attachment to others which leads her to demonstrate her evident vulnerability through a clinging and dependent attachment style which seems to be able to shift its focus according to her circumstances between whichever party appears to offer her support or protection … wholly preoccupied by her own insecurities."
Ms Ilett's attendance note of her meetings with M, the first with her (Ms Ilett) alone, the second together with Dr PO, provided much material supportive of that conclusion, as of her own conclusion to the same effect.
i) The first is M's will dated 31 May 1996: M appointed her cousin, J, to be sole executor, gave the sum of £20,000 to her neighbour (described in the will as "my friend") PM and gave the residue to six named charities, five of them each taking two eleventh parts and the sixth taking one eleventh part of the eleven parts into which she directed the residue was to be divided.
ii) The second is M's will dated 20 June 2001: M appointed PM to be her executor and gave him, by clause 3, a pecuniary legacy of 5% of her gross estate after deduction of inheritance tax, expenses and debts. By clause 4 she gave the residue to be divided equally between nine named charities – the six named in her previous will together with three others.
iii) The third is what is described as a First Codicil to that will; it is dated 13 December 2003. I should record that the parties and the court were not aware of its existence (nor therefore of its contents) at the time of the hearing in February 2009. It is on any basis a curious document the meaning of which is far from clear. Clause 1 directs the insertion after clause 2 of the 2001 will of a new clause 2A, whilst clause 2 provides that "in all other respects I confirm my Will." The new clause 2A appears to contain both a devise of M's house (described as "the Property") and a discretionary trust of her residuary estate. As to the former, it is to be noted that although clause 2A(2) provides for the house to be held "upon a trust of land and with and subject to the powers and provisions hereinafter declared concerning the same", none are set out, unless (which is not what clause 2A says) this is intended to be a reference to what is set out in clause 2A(3) in relation to the discretionary trust of residue. As to the latter, it is to be noted that whereas, on the face of it, the effect of clauses 1 and 2 of the Codicil is to preserve the gift of the residue in clause 4 of the Will (ie, the gift to the various charities), clause 2A(3) identifies the beneficiaries under the discretionary trust of residue as being, primarily, PM and his issue.
iv) The fourth is a will dated 30 September 2004: M appointed Z to be her executor and gave him the whole of her estate.
v) The fifth is the statutory will executed by the Deputy on 16 February 2009 pursuant to the order I had made on 13 February 2009: This provided for PM to receive a pecuniary legacy of 5% of the gross estate after deduction of inheritance tax, expenses and debts and for the residue to be shared equally between the nine charities named in the 2001 Will. In other words, as to the substance it reinstated the 2001 Will.
The legal framework
"(5) An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.
(6) Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person's rights and freedom of action."
"(1) In determining for the purposes of this Act what is in a person's best interests, the person making the determination must not make it merely on the basis of –
(a) the person's age or appearance, or
(b) a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about what might be in his best interests.
(2) The person making the determination must consider all the relevant circumstances and, in particular, take the following steps.
(4) He must, so far as reasonably practicable, permit and encourage the person to participate, or to improve his ability to participate, as fully as possible in any act done for him and any decision affecting him.
(6) He must consider, so far as is reasonably ascertainable –
(a) the person's past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity),
(b) the beliefs and values that would be likely to influence his decision if he had capacity, and
(c) the other factors that he would be likely to consider if he were able to do so.
(7) He must take into account, if it is practicable and appropriate to consult them, the views of –
(a) anyone named by the person as someone to be consulted on the matter in question or on matters of that kind,
(b) anyone engaged in caring for the person or interested in his welfare,
(c) any donee of a lasting power of attorney granted by the person, and
(d) any deputy appointed for the person by the court,
as to what would be in the person's best interests and, in particular, as to the matters mentioned in subsection (6)."
"Having gone through these steps, the decision maker must then form a value judgment of his own giving effect to the paramount statutory instruction that any decision must be made in P's best interests. In my judgment this process is quite different to that which applied under the former Mental Health Acts."
i) The first is that the statute lays down no hierarchy as between the various factors which have to be borne in mind, beyond the overarching principle that what is determinative is the judicial evaluation of what is in P's "best interests".
ii) The second is that the weight to be attached to the various factors will, inevitably, differ depending upon the individual circumstances of the particular case. A feature or factor which in one case may carry great, possibly even preponderant, weight may in another, superficially similar, case carry much less, or even very little, weight.
iii) The third, following on from the others, is that there may, in the particular case, be one or more features or factors which, as Thorpe LJ has frequently put it, are of "magnetic importance" in influencing or even determining the outcome: see, for example, Crossley v Crossley  EWCA Civ 1491,  1 FLR 1467, at para  (contrasting "the peripheral factors in the case" with the "factor of magnetic importance") and White v White  Fam 304 (affirmed,  1 AC 596) where at page 314 he said "Although there is no ranking of the criteria to be found in the statute, there is as it were a magnetism that draws the individual case to attach to one, two, or several factors as having decisive influence on its determination." Now that was said in the context of section 25 of the Matrimonial Causes Act 1973 but the principle, as it seems to me, is of more general application.
i) First, P's wishes and feelings will always be a significant factor to which the court must pay close regard: see Re MM; Local Authority X v MM (by the Official Solicitor) and KM  EWHC 2003 (Fam),  1 FLR 443, at paras -.
ii) Secondly, the weight to be attached to P's wishes and feelings will always be case-specific and fact-specific. In some cases, in some situations, they may carry much, even, on occasions, preponderant, weight. In other cases, in other situations, and even where the circumstances may have some superficial similarity, they may carry very little weight. One cannot, as it were, attribute any particular a priori weight or importance to P's wishes and feelings; it all depends, it must depend, upon the individual circumstances of the particular case. And even if one is dealing with a particular individual, the weight to be attached to their wishes and feelings must depend upon the particular context; in relation to one topic P's wishes and feelings may carry great weight whilst at the same time carrying much less weight in relation to another topic. Just as the test of incapacity under the 2005 Act is, as under the common law, 'issue specific', so in a similar way the weight to be attached to P's wishes and feelings will likewise be issue specific.
iii) Thirdly, in considering the weight and importance to be attached to P's wishes and feelings the court must of course, and as required by section 4(2) of the 2005 Act, have regard to all the relevant circumstances. In this context the relevant circumstances will include, though I emphasise that they are by no means limited to, such matters as:a) the degree of P's incapacity, for the nearer to the borderline the more weight must in principle be attached to P's wishes and feelings: Re MM; Local Authority X v MM (by the Official Solicitor) and KM  EWHC 2003 (Fam),  1 FLR 443, at para ;b) the strength and consistency of the views being expressed by P;c) the possible impact on P of knowledge that her wishes and feelings are not being given effect to: see again Re MM; Local Authority X v MM (by the Official Solicitor) and KM  EWHC 2003 (Fam),  1 FLR 443, at para ;d) the extent to which P's wishes and feelings are, or are not, rational, sensible, responsible and pragmatically capable of sensible implementation in the particular circumstances; ande) crucially, the extent to which P's wishes and feelings, if given effect to, can properly be accommodated within the court's overall assessment of what is in her best interests.
"There is one other aspect of the "best interests" test that I must consider. In deciding what provision should be made in a will to be executed on P's behalf and which, ex hypothesi, will only have effect after he is dead, what are P's best interests? Mr Boyle stressed the principle of adult autonomy; and said that P's best interests would be served simply by giving effect to his wishes. That is, I think, part of the overall picture, and an important one at that. But what will live on after P's death is his memory; and for many people it is in their best interests that they be remembered with affection by their family and as having done "the right thing" by their will. In my judgment the decision maker is entitled to take into account, in assessing what is in P's best interests, how he will be remembered after his death."
The basis of the application
i) Section 4(6)(a) – M's past and present wishes and feelings: Except in relation perhaps to J, it is clear in my judgment that M is not capable of reliably expressing any present wishes and indeed evinces little interest in the matter. Ms Ilett's attendance note of her visit to M on 12 February 2009 contains the following illuminating passage: "This comment and other comments made by M during the meeting left me with the impression that M's expressed views as to the contents of her Will were motivated by what she thought was expected of her rather than what she actually wanted. She also appeared to believe that, having made a Will, its terms should not really be departed from." So far as concerns her previous wishes, Miss Rich submits that the previous wills are prima facie evidence of M's past wishes (save, as she points out, to the extent that the 2003 codicil seems not to have been executed in accordance with M's true intentions). And as Mr Smith points out, until the making of the 2003 codicil M had reasonably settled wishes, giving a legacy to PM and the residue to charities.
ii) Section 4(6)(b) – the beliefs and values that would be likely to influence her decision if she had capacity: Miss Rich submits that there is little or no relevant evidence on this point. There is no evidence of any belief by M in adherence to a 'dynastic' pattern of inheritance nor is there evidence of any particularly strong connection with any of the charities named in the 1996 and 2001 wills. On the other hand, as Mr Smith puts it, there does seem to be a consistent desire from 1996 to 2003 to benefit charities.
iii) Section 4(6)(c) – the other factors she would be likely to consider if she were able to do so: As Miss Rich points out, since making her 2004 will there have been considerable changes in all aspects of M's life which she could not have foreseen at that time, and which are largely changes resulting from orders made in her best interests in the Family Division proceedings and the Court of Protection proceedings, rather than from decisions that she has made herself. M no longer lives with Z and his family or has any contact with them, and is unlikely ever to return to live in her own home or another private household. Z is not responsible for her property and affairs and the validity of substantial transfers of funds from M to Z has been questioned and may be pursued in litigation on her behalf. And Z has not as yet provided sufficient or satisfactory explanation of his dealings with M's property and affairs.
iv) Section 4(7): ITW and Z have given evidence of their views as to what would be in M's best interests. The views of the local authority and its employees engaged in caring for M or interested in her welfare are not in evidence and, says Miss Rich, are unlikely to be relevant, as the local authority has no concern with M's property and affairs or knowledge of matters which would be relevant under section 4(6). PM's daughter has provided the Official Solicitor with some evidence of the extent of family friendship between M and PM's family, in particular some photographs and a video film of a family occasion from 1995.
i) All of M's earlier wills, save for the 2003 codicil as it stands, but including the 2004 will, should be regarded as "relevant written statements" within the meaning of section 4(6)(a). As she points out, the Court of Protection has no jurisdiction to rule on the validity or invalidity of any will, and the 2004 will does appear to have been substantially valid, having regard to the evidence of Ms D and Dr T on M's capacity, knowledge and approval and her seeming freedom from any undue influence exercised by Z.
ii) As regards the 2003 codicil, there is, for all the reasons I have already rehearsed, a strong likelihood that it was not executed containing the provisions that M intended and that it might well have been subject to a successful rectification claim under section 20 of the 1982 Act if it had remained unrevoked and been admitted to probate. Miss Rich further suggests that knowledge and approval would have been in issue, given what she says was the extent of involvement of PM's family in procuring the execution of the codicil via correspondence with professional intermediaries at the same time as giving instructions for work on PM's behalf, and given also the fact that the wording of the codicil as it stands suggests that M did not read it over and understand it before she executed it. In all the circumstances, she submits, I should accordingly consider it more likely than not that the "past wishes" which M intended to express in the 2003 codicil were in fact a wish to devise her house to PM's family, and the residue of her estate (which at that date included the value of her share portfolio and other cash in deposit accounts or other investments of a sum which may have been as much as £300,000) to the charities named in the 2001 will.
iii) M's wills in the period 1996 to 2004 do not show a unified or settled pattern of testation, save for the exclusion of any members of her wider family (apart from the appointment of her cousin J as her executor). The 1996 and 2001 wills largely benefit charity (to a substantial extent the same charities as between the two) with a legacy to a friend and neighbour, PM, which is clearly above the level of being a token but nevertheless represents a minor fraction of her estate. The 2003 codicil (if analysed as she suggests I should) preserved the charitable intention and structure of the residuary gift of the 2001 will but introduced a substantial gift of property – the house – to PM's family. The 2004 will, made only nine months later, entirely excludes both PM's family and the charities in order to benefit Z alone.
iv) Although there is, as Miss Rich accepts, no extrinsic contemporaneous documentary evidence in support of her analysis, she submits that it appears, from what is known of M's relationship with PM's family and then with Z's family, that in each case the codicil or will substantially benefiting them was made on the understanding that each would take on responsibility for her care for the remainder of her lifetime – an analysis which, as she points out, is consistent with the view expressed by Dr PO, based on a number of meetings with M, in the passage in his report of 13 February 2009 which I have already. Moreover, as Miss Rich also points out, Z himself in his witness statement of 27 February 2009 says that "when M signed the 2004 will she did so in the expectation that she would spend the remainder of her life in my home."
v) Given the change in circumstances since the 2004 will, Miss Rich submits that M's past wishes can form only a limited template for a statutory will made in her best interests. As there is no longer any question of her care being provided by a neighbour or other private household on the basis of an understanding or expectation that the carer would inherit a substantial part or all of her estate, there is, she submits, no reason why either PM's family or Z should benefit to the extent of their expectations under the 2003 codicil and 2004 will respectively. As Mr Smith puts it, given that there is no longer an individual on whom M is dependent for her security, the impetus behind the 2003 codicil and the 2004 will has probably disappeared.
vi) However, she acknowledges that PM had clearly been a long-standing neighbour and family friend to M, though his expectations under the 2003 codicil were significantly greater than they were under either the 1996 will or the 2001 will.
vii) As regards Z, and the issue of whether he should be entitled to any legacy to reflect his expectations under the 2004 will, Miss Rich submits that M's past wishes have to be balanced against Z's subsequent conduct in relation to her and her property and affairs, the court-imposed cesser of contact between M and Z and his family, and the prospective proceedings for recovery of M's funds from him. The Official Solicitor, she tells me, considers that the weight to be given to these factors is sufficient to exclude Z and any member of his family from any benefit under a statutory will made on this application. It cannot conceivably, she says, be in M's best interests both to litigate the recovery proceedings (which have already been directed by the Court) and at the same time to make any provision under her will for Z, who is the prospective defendant to those proceedings. And for good measure, she adds, in considering M's best interests it would be wrong for the court to depart from the principle in In re Rhodesia Goldfields Ltd  1 Ch 239, which I referred to in my judgment of 19 December 2008, and make an order which conferred a prospective benefit on Z before he had restored any funds found to be due to M's estate.
viii) Finally, says Miss Rich, Z's own views of what would be in M's best interests should be disregarded. Even if Z falls within section 4(7)(c) by virtue of having been the donee of an EPA or is a person "interested in M's welfare" under section 4(7)(b), I should not, she says, regard it as appropriate for him to be consulted as to what would be in M's best interests, if for no other reason than that he is not disinterested in the outcome of the application and insofar as his evidence consists of views rather than ascertainable facts is accordingly likely to be wholly self-serving.
i) He adopts a more questioning approach than Miss Rich to the validity of the 2004 will, submitting that, although, taking the evidence as a whole, M may not have lacked capacity at the time, she was vulnerable and dependant on Z and that there appears to be at least a serious risk that Z would have attempted to influence her to make a will in his favour. He relies in this context upon the large sums of money transferred by her to Z, my criticisms of Z as set out in the passages in the two judgments to which I have referred, the fact, as he suggests, that Z seems to have made himself the central focus of M's life at the time the 2004 will was made and to have discouraged her contact with others (as to which see my judgments) and the fact that the 2004 will left everything (that is, everything which had not already been transferred to him) to Z.
ii) He also adopts a more stringent analysis of Z's misconduct as a reason for excluding Z altogether from benefit:a) There is, he says, a strong prima facie case that Z is liable to M for the monies he received from her; he was a fiduciary, she placed trust and confidence in him and he owed fiduciary obligations to her; there is a presumption, not least given the size of the alleged 'gifts', that the payments she made to him were the result of abuse of confidence and/or undue influence; and it is for Z to prove that the transactions were fair and to prove that there was no undue influence – a burden which, he says, Z has not yet come anywhere near discharging.b) It would also and in any event be inappropriate to make any provision for Z in circumstances where he has still failed to comply fully with the order I made on 19 December 2008.c) Furthermore, and in any event, Z has already received what Mr Smith appropriately calls a very large sum from M.
iii) In all the circumstances, the Deputy, he says, appropriately considers that:a) No provision should be made for Z.b) In the absence of other beneficiaries it is appropriate to revert to the pre-2004 arrangement of a legacy to PM with the residue passing to the charities.c) Whilst the gift of the house to PM and his family (or, now that it has been sold, the proceeds of sale) is not appropriate given in particular the fact that M is no longer dependent on PM, an increase from the 2001 will legacy of 5% to 10% is appropriate.
i) First, he says, relying upon the evidence of Ms D and Dr T, the 2004 will was legally valid and represented M's true wishes.
ii) Secondly, he says, he intends to appeal against the orders I made in February 2009. That may be, but the fact is he has not done so.
iii) Thirdly, and in any event, he says that the change in circumstances resulting from my orders removing M from his care are not so significant as to merit or justify the making of a statutory will at all; alternatively, and in any event, the terms of the proposed statutory will, excluding him completely when he was the sole beneficiary under the 2004 will, are unfair. The fact is, as he points out, that she did spend over four years with him and his family being looked after by them.
iv) Fourthly, he "utterly rejects" the claim that he misused M's money or that the gift to him was anything other than that. He disputes that what he calls any ill motives on his part should be imputed to him; certainly not so as to justify excluding him completely as a beneficiary under M's will.
i) I cannot agree with Miss Rich's proposition that Z's views of what would be in M's best interests should be disregarded, though I accept that, for all the reasons she gives, his views can in all the circumstances carry very little weight.
ii) It is not necessary, and I am far from persuaded that it would in any event be appropriate, for me to go all the way with Mr Smith in his submission that both the inter vivos transactions and the 2004 will were, or were very likely, the result of inappropriate influence exercised by Z. The Court of Protection has no jurisdiction to rule on the validity of any will; I have (appropriately) not heard all the evidence which it would be necessary to hear if findings were to be made on these issues; and it has to be borne in mind that the validity and propriety of the inter vivos transactions may yet be the subject of litigation in the Chancery Division.
i) First, there is the fundamentally significant change of circumstances correctly relied on by Miss Rich and Mr Smith. Its significance, despite what Z would have me accept, is only borne out by his own acknowledgement that, and I repeat what he said, "when M signed the 2004 will she did so in the expectation that she would spend the remainder of her life in my home."
ii) Secondly, there is the fact that Z has already received large sums from M and, on top of what he has already had, is seeking in addition reimbursement at the annual rate of £20,100 for the cost of her care. Now it seems to me that Z is really here on the horns of a dilemma, impaled, as it were, upon one or other prong of Lord Chancellor Morton's well-known fork. Either he has properly received, and without any impropriety on his part, the various monies transferred to him by M or he has not. If he has, then what further call can he have upon M's bounty, given (a) the sums he has already received and (b) the further sums he is claiming, when both are evaluated in the light of his caring for M for some four years and not, as matters have turned out, for the rest of her life? How can it be in her best interests on this hypothesis to give him yet more? The simple fact, in my judgment, is that there is only one possible answer to such questions. But if, on the other hand, he has not – if he has indeed been guilty of impropriety – then how can it possibly be in M's best interests to 'reward' him by making yet further provision? Again, there is only one possible answer to the question.
iii) Thirdly, and in any event, there are the serious findings I have made against Z as set out in my earlier judgments and the fact that he has still failed to comply fully with the order I made on 19 December 2008. How can it possibly be in M's best interests to make testamentary provision for someone who has shown himself so unwilling or so unable to act in her best interests and who has acted in defiance of orders of the court made for her protection and in furtherance of her best interests? Again, the answer is obvious.
A legacy for J?
i) First, M's reported statements as to why J should not benefit under her will. During her interview with M on 12 February 2009, Ms Ilett asked M whether she would want to benefit J and his wife; "she said that she would not as they did not need the money." The information supplied by J himself to Ms Ilett, in a letter he sent her dated 11 March 2009 and in a telephone conversation with her on 12 March 2009, was particularly illuminating, for he reported what M had told him when she still had capacity. In relation to the 1996 will, of which he was the executor, J recalled M commenting that "we had good provisions for ourselves" – the phraseology may be slightly odd but the meaning is clear. In the course of the telephone conversation, Ms Ilett told J what M had said: "she had been most emphatic that they" – J and his wife – "need not be included, as they had more than enough money of their own." J's response, as recorded by Ms Ilett was that M "had made the same comment to him when she had capacity."
ii) Second, the fact that J's involvement in M's life since she was removed from Z's care has hardly been assiduous: seemingly a limited number of telephone calls and visits on two occasions
- I agree with Miss Edge. A particularly compelling feature, as it seems to me, is that were J to be included as a legatee he would be gaining a benefit which M, while she had capacity, felt that he did not need and which, it would seem, she still thinks he does not need. How can it be in her best interests to go counter to such long-held views? The only proper answer, it seems to me, would be if it could be said that giving him a legacy was either an appropriate reward for what he is now doing for M or an inducement to him to do more for her; but neither, in my judgment, can be justified in the circumstances as they exist.
Conclusions and order