England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE NOMINATED JUDGE UNDER PART VII MENTAL
HEALTH ACT 1983
SIR FRANCIS FERRIS
10434903

		Royal Courts of Justice Strand, London, WC2A 2LL
		23/06/2006

Lord Justice Mummery :

Introduction

1. This is a second appeal and is from the nominated judge (Sir Francis Ferris) under Part VII of the Mental Health Act 1983. He dismissed an appeal against the decision of the Master in the Court of Protection authorising the receiver of a patient to make a statutory will on her behalf.
2. The Court of Appeal (Sir Mark Potter P and Sir Peter Gibson) held on 1 November 2005 that no permission to appeal was required under the CPR. There is a statutory right of appeal from the nominated judge to the Court of Appeal. The decision is reported in [2006] 1 WLR 278. It sets out most of what needs to be known about the general background to this appeal.

Application for statutory will

3. On 19 March 2004 the patient's then receiver applied to the Court of Protection to make a statutory will. The patient, anonymised in this judgment as MB, is 74 years old. She lacks testamentary capacity as a result of senile dementia and Alzheimer's disease. She needs a great deal of care and attention, which is provided by one of her sons, whom I will call G. He lives with her and he has the support of professional carers. He acts in person in these proceedings. The Official Solicitor represents the interests of the patient on this appeal.
4. Long before the onset of her illness MB had made a will on 20 October 1981. She appointed G as sole executor and divided her estate equally between her 3 children G, another son, whom I will call A, and a daughter, whom I will call S. The estate is substantial. It is estimated to run into several million pounds. There are properties here and abroad, ordinary investments and a 10% shareholding in a company of which S's husband is a director. Disputes have arisen about a rights issue in the company, which the Official Solicitor is investigating. There have been problems with sales of some of the patient's properties.
5. The patient's first receiver was appointed on 15 April 2003. He was a solicitor. The appointment of a receiver was opposed by G in principle. He maintained that his mother would not wish to incur the costs of having a professional receiver to manage her affairs. The relations between G and the receiver's firm have not been good.
6. There is also disharmony between MB's 3 children, which has created problems in the managements of her affairs and would also create problems in the administration of the patent's estate. Matters have not been improved by G's upset at the contents of a report of 12 July 2004 made by the Lord Chancellor's general visitor about the care of the patient. G alleges that the report contains defamatory statements.
7. Against this background Assistant Master Prime at the Court of Protection made a statutory will for the patient on 4 August 2004. There had been several adjournments of the application at G's request. He did not attend the hearing, having been refused an adjournment sought by him on medical grounds. Representations were made by the receiver and by the Official Solicitor representing the interests of MB. The Master concluded that it was in the interests of the patient for a new will to be made. He decided that the circumstances called for a professional executor. He held that there was no reason for not appointing the receiver, who was in possession of relevant financial information, as executor of the will.
8. The dispositive provisions of MB's original will remained as before. The receiver's firm (limited to 2 partners) was appointed executors in G's place. A hotch pot clause was introduced and so were STEP (Society of Trust and Estate Practitioners) administrative provisions.

Appeal to nominated judge

9. G appealed to the nominated judge. G objected to the removal from MB's will of his appointment as sole executor and to the appointment of partners in the receiver's firm in his place. He wished to be re-instated as sole executor. He also wanted the receiver removed. The receiver himself wanted to resign, but proposed that another partner in his firm be appointed in his place.
10. On 21 February 2005 Sir Francis Ferris, sitting as a nominated judge under Part VII of the Mental Health Act 1983, dismissed G's appeal after a re-hearing during which he heard submissions from G in person, from counsel for the receiver and from counsel for the Official Solicitor. He held that

"19. ….what is abundantly clear is that there is and has been for very many years, a state of conflict between the patient's three children and that state of conflict looks likely to continue indefinitely.

20. The court is not in a position to say who is right and who is wrong in that conflict. I approach the matter simply on the footing that the conflict exists and unless resolved will inevitably produce controversy and difficulty in the administration of the patient's estate when she dies, whoever is responsible for that administration.

21. It does appear to me, however, that the administration has the best chance of proceeding efficiently if it is in the hands of an independent party which almost inevitably means a solicitor.

22. Accordingly, I find that the master's principal reason for making the order that he did is a perfectly good reason and fully justified the decision."

11. The judge remitted the matter to the Master to be heard after the determination of the future of the receivership. He directed that consideration should be given to the appointment as professional executor of a person who was not a partner in the firm of the then receiver. He also directed that the hotch pot clause 6(a) should be deleted from the will.
12. On 14 April 2005 Assistant Master Prime appointed G and his sister S to be joint interim receivers. The solicitor receiver was discharged from the receivership. The hearing was attended by G, S and counsel on behalf of the Official Solicitor. The interim arrangement was to be reviewed after 3 months to see how it was working.
13. G's appeal to this court was held up pending the court's determination of the question whether he needed permission for a second appeal. In holding that permission was not required under the CPR, the Court of Appeal directed that the hearing of the substantive appeal should be postponed until after the review of the interim joint receivership had taken place and a substantive receiver had been appointed.
14. On 9 January 2006 the interim receivership was discharged, as no working relationship had been established between G and S during their period of office. As was evident from correspondence between G, S and the Public Guardianship Office no real progress was made in dealing with the patient's affairs. As there was no real prospect of G and S being able to work together an independent panel receiver, who was a solicitor from a different firm from the previous receiver, was appointed.

Appeal to Court of Appeal

15. The Official Solicitor, who was represented by Mr David Rees of counsel, was granted an extension of time (without opposition from G) to file a respondent's notice, in which he proposed that this court should authorise the execution of a statutory will in the terms proposed by Sir Francis Ferris rather than remit the matter to the Master for re-consideration. It was also proposed that partners in the new receiver's firm should be appointed executors of the statutory will. The Official Solicitor was content that the whole of the hotch pot clause should be removed from the patient's will.
16. The proposals of the Official Solicitor were opposed by G. He contended that his appeal should be allowed and that his appointment as sole executor of MB's will should be re-instated. Both the Master and Sir Francis Ferris had, he said, failed to take proper account of his mother's wishes in her original will that he should be the sole executor of her will. She had decided that he was the best person to look after her affairs. The position under the existing will ought not to have been changed by the court. It departed from his mother's wishes about the executorship and displaced him from office without any lawful reason. There was no need to change her will.
17. G lives with MB and looks after her. He said that he is on good terms with her. He said that she would not have wanted him to be replaced by a solicitor and have her estate administered by a stranger at greater expense. He would know better than a professional receiver and executor what his mother wanted in the circumstances. He would also have personal knowledge of the properties, more relevant expertise to administer her affairs and a greater motive to act in the interests of the patient's estate and in the realisation of assets than a paid professional would have.
18. G made a number of other points in his written and oral submissions: at the hearing and in a further written submission of 10 May, sent in after the hearing he alleged that the Master had been misled by untrue and defamatory statements in the report of the Lord Chancellor's visitor; that he had been denied a fair hearing before the judge, who had shown a lack of impartiality, had exercised his discretion for an improper purpose and had given a contradictory judgment; that he had been denied equal access to justice; that the Official Solicitor had not disclosed documents to him; that the judge was wrong to say that there was no evidence of incompetence, impropriety or potential conflict of interest in the conduct of the previous receiver's firm; that he had been obstructed in attempting to obtain access to information about his mother's affairs; and that it was wrong to rely on the discord between him and S as a reason for removing him when S was responsible for creating the conflict.
19. The only point of substance in all this is whether the judge failed to take into account a factor relevant to the exercise of his discretion, namely the wishes of the patient as to the identity of her executor.

Conclusion

20. The general principles guiding the court on an application to make a statutory will were discussed in the judgment of Sir Robert Megarry V-C in Re D(J) [1982] Ch 237 at 243-244, a decision on the similar jurisdiction under the Mental Health Act 1959.
21. The important point for present purposes is that it is the actual individual patient who has to be considered, the function of the court being to do for the patient what the patient would fairly do for herself, if she could and acting with the benefit of advice from a competent solicitor.
22. A competent solicitor would, in my view, point out to the patient any relevant change of circumstances since the making of the original will. He would draw the patient's attention to the discord that now exists among her three children and advise her about the difficulties in the administration of her affairs and her estate which would follow if G remained sole executor. He would advise her about the advantages and disadvantages of appointing an independent professional person as executor. A competent solicitor would also advise the patient of the practical advantages of having an executor connected with the receivership in order to keep continuity between the receivership and the executorship. It is also clear that the size and nature of the patient's estate is such that it would be difficult to administer it without any involvement of lawyers and other professionals. Reasonable professional costs and expenses in connection with the administration of the estate are unavoidable.
23. In these circumstances I am satisfied there was no error of legal principle in the exercise of the nominated judge's wide discretion in this matter nor can it be said that he was plainly wrong in affirming the decision of the Master to make a statutory will appointing an independent professional executor in place of G. This court is not entitled to interfere with the judge's exercise of discretion in respect of the appointment of a professional executor in place of G.

Result

24. I would dismiss the appeal and make an order in the terms proposed by the Official Solicitor.

Lady Justice Arden:

25. I agree.

Lord Justice Moore-Bick:

26. I also agree.