England and Wales Court of Protection Decisions

COURT OF PROTECTION
MENTAL CAPACITY ACT 2005

		18 November 2016

HHJ KAREN WALDEN-SMITH:

1. The applicant, Maurice Hackenbroch, is the appointed deputy to act for J for property and financial affairs by order of DJ Glenworth made on 27 November 2014. By a COP1 dated 30 October 2015, the applicant has applied for authority to execute a statutory will and to transfer a piece of land owned by J pursuant to the provisions of section 18(1)(i) and 18(1)(b) of the Mental Capacity Act 2005 ("the MCA 2005").
2. The application to have authority to make the statutory will and the transfer of land is supported by both the Official Solicitor, who is acting as J's litigation friend pursuant to the order of DJ Glenworth made on 26 October 2015, and the second respondent, A, son of J and her late husband K. The dispute between them is with respect to the division of the estate between A and D, another son of J and K. The stance being taken by the OS, as litigation friend of J, is that the estate should be divided 75/25 in favour of D. A contends it should be 50/50. It is agreed that the applicant, as deputy, has fulfilled his obligation under the terms of an order approved by Simon Monty QC, sitting as a deputy judge of the High Court, by bringing this application. The deputy does not take a strong stance on whether the statutory will should provide for a 75/25 or 50/50 division.

The Background

3. K was born on 4 March 1927 and he died on 30 December 2009 aged 82. J was born on 7 September 1930 and is now aged 86. They have two children, D born on 5 May 1950 who is now aged 66, and A, who was born on 29 April 1960 and is now aged 56. Both D and A are married with children.
4. By the last will of K, his entire estate was left to J.
5. However, it was discovered that the matrimonial home at X Road, NW3, which had been purchased and registered into the joint names of K and his brother PS in the 1960s, and was transferred to K's sole name in the 1980s, had been transferred into the sole name of A for no consideration on 11 April 2003 and registered into his sole name on 16 April 2003. Further, a piece of land adjoining property at Y Road, NW3, which property had been purchased jointly by K and his brother PS on 9 May 1966, had mistakenly not been transferred to K and PS. Title to Y Road was registered in the joint names of K and his great nephew, DSM on 28 November 2001. Title to the land adjoining Y Road was registered in the sole name of K on 13 March 2009, after A had instructed solicitors to obtain adverse possession of the land. The land adjoining Y Road was then transferred to A and his wife KKS for no consideration (or £500) on 20 August 2009 and registered in their joint names on 14 September 2009.
6. J executed her will on 16 June 2010. A capacity assessment was undertaken by Dr Paul Wallace of the H Group Practice who confirmed on 20 May 2010 that she was able to understand the nature of the act of making a will and its effects, that she was able to understand the extent of the property she was disposing, and that she was able to comprehend and appreciate the claims to which she ought to give effect and was not suffering from a disorder of the mind.
7. Her solicitor, Jacalyn Cramer, created an attendance note of the meeting she had with J for the purpose of taking instructions for the drafting of the will. The attendance note dated 9 June 2010 provides that an interpreter of Punjabi was instructed. Instructions were taken with respect to her children and grandchildren, including that she had a close relationship with D and his children. J stated that that she had not spoken to A since her husband had died and that A had been very abusive and aggressive towards her and tried to hit her with a stick – and that she did not wish him to inherit anything from her estate as he already has the family home of herself and her late husband – X Road registered in his name worth £1,000,000. She instructed her solicitor that the entire estate should go to D and if he dies before her then to his son RSM. She also instructed her solicitor that she does not want her other grandchildren as substitute beneficiaries as she has no relationship with A's children.
8. In the letter from Jacalyn Cramer dated 10 June 2010, confirming her instructions and enclosing a copy of the draft will, she explains the various provisions of the Will and said:

"I confirm you having instructed me that you wished to leave your entire estate to your son D and nothing to your other son A due to the fact that A already had the family home X Road valued at around £1,000,000 transferred into his own name. In addition your late husband bought a shop for A during his lifetime and you purchased a house for him many years ago so that he now owns two properties. Furthermore you instructed me that since your husband's death, A has been very aggressive and abusive towards you and tried to physically attack you when you sought to enquire about how he managed to get X Road transferred into his sole name. You also instructed me that you have a close relationship with D and his children but no relationship with A's children."

9. Taking both the contents of the will and the instructions given for the drafting of that will, it appears on the face of it that J was seeking to reach parity or near parity between her two children. The fact that A already had X Road meant that D should have the entirety of the estate. Further, she was instructing her solicitor that at that time, 2010, she had a poor relationship with A and his children and that A had been aggressive and abusive towards her and had even tried to physically attack her. At the time she was making those allegations she had capacity.
10. In August 2012, J issued proceedings to set aside the transfers of X Road and the land adjoining Y Road which had been made to A and KKS respectively. The claim was founded on the basis of either undue influence or lack of capacity on the part of K.
11. The case was due to be heard in June 2014 but shortly before the hearing J was assessed as lacking capacity to conduct proceedings and the applicant in this matter, the applicant, was then appointed as her litigation friend.
12. The proceedings were compromised between the parties. As J was a protected party and declarations were sought, the compromise needed approval and the claim was concluded by an order of Simon Monty QC, as a Deputy Judge of the High Court.
13. The order contains a number of recitals including that a compromise had been agreed and that the Defendants (A and KKS) were not defending the claim. The pleadings and witness statements for the Claimant and the Defendant were read and Simon Monty QC determined that the order was justified on the facts and was for the benefit of the Claimant as a protected party.
14. Declarations were made, which the court must have been satisfied ought to have been made on the evidence, that the transfer of X Road to A on 11 April 2003, had been procured by undue influence and that the transfer of the land adjoining Y Road to A and KKS on 20 August 2009, had been procured by undue influence and was an invalid transfer for want of capacity. As a consequence, it was ordered that the conveyances of X Road and the land adjoining Y Road be set aside and vest in J's sole name. The costs of the action were divided so that the Defendants would pay 55% of the Claimant's costs and their own costs.
15. The order further provided that the terms of the Schedule, in which the compromise agreement was set out, be carried out. In clauses 2 and 3 of the schedule it was set out that the applicant apply to the Court of Protection to be appointed deputy for J to manage her property and affairs and that he apply, once the deputyship order was made, for a statutory will for all her estate in the UK. The terms of that statutory will to be in terms, inter alia, that J's estate in the UK be given to her two sons, D and A. It is acknowledged by all the parties who appeared before me that the schedule could not bind the Court of Protection and that it was for the Court of Protection to determine whether there ought to be a statutory will and, if so, the terms of that statutory will.
16. The applicant has complied with his obligations under the terms of the schedule attached to the order setting out the terms of the compromise by making the application for a statutory will in terms that the estate be given to D and A in equal shares. As has been acknowledged, the applicant could not bind the Court of Protection with respect to whether a statutory will would be made or the terms of that statutory will. The most he could do was that which has been done, that is make the application to the Court of Protection. It is then for the Court of Protection to determine whether it is appropriate for a statutory will to be made and, if so, the terms of that statutory will. I am acting on the assumption that both A and KKS, who were represented by Counsel for the purpose of entering into the compromise and the Order in the Chancery proceedings, were being advised that it not possible to bind the Court of Protection and while the schedule set out what the intentions were at that time it could only be evidence of that intention and was not binding.
17. The applicant has set out that an order authorising him to execute a statutory will for J will benefit her as it will put in effect the terms of the Order and attached Schedule dated 16 June 2014. An order authorising him to transfer 50% of the land adjoining Y Road to DSM would benefit J as it would be consistent with her witness statement made in the Chancery proceedings which was made at a time when she had litigation capacity.
18. A has acknowledged service of the application and consents to the application for a Statutory Will with a 50/50 split between himself and D. DSM has also acknowledged service and has indicated his consent to the application. D has also acknowledged service but opposes the application for a statutory will to be made and asks that the will dated June 2010, under which he inherits all, remains in place.
19. J currently has assets totalling £3,084,988 including the property at X Road, which is valued at approximately £2,000.000.00 and a half share in the freehold land at Y Road, her half share being valued at approximately £850,000. The land adjoining Y Road is valued at £40,500. There are further assets in the form of two Nationwide accounts totalling £34,600; funds in the solicitors' client account totalling £218,000; a potential claim to recover funds in a further Nationwide Account which originally held £250,000 but which was transferred to D's sole name and now holds approximately £100,000 monies having been spent on repairs to Y Road, legal proceedings in India and in respect of the Chancery proceedings. It is said in the COP 3 form that the monies held in this particular account were gifted to D. This information is also set out in an attendance note dated 3 June 2015 which records that "We asked about the £250,000 which she gave to D which money originated from her late husband. She said she wanted D to have this money. D says there is £100,000 left. £50,000 was used for repairs on Y Road and £100,000 on legal fees (some to us and some to India)." There were some submissions before me, particularly on behalf of A, that there are properties in India but there was no evidence put before me with respect to what those properties might be, their potential value and who is likely to inherit
20. J currently lacks capacity. A COP 3 assessment of her capacity was undertaken by Dr Patricia Ryan, a consultant old age psychiatrist, on 7 July 2015. Dr Ryan reports that J has dementia of moderate severity and of possible Alzheimer aetiology causing deterioration of her orientation, ability to retain information and judgment. She indicates that this has lasted since at least 2014 and that she is unable to complete a will or manage the transfer of a 50% share of the land adjoining Y Road to DSM as she is unable to understand complex financial matters and would be unable to independently complete a transfer of the land. Dr Ryan does say that she understands the nature and purpose of a will but that she cannot retain information and is unable to retain for any length of time the approximate worth of her assets. She says that because of her dementia J has poor judgment and cannot weigh information as part of the process of making a decision and in conclusion that:

"J has a moderate severity dementia which has caused a deterioration in her short term memory so that she cannot retain information such as the worth of her assets, the names of her grandchildren and whether she has been visited. Her judgment is poor causing her to react in an over-reactive manner and be unable to weigh information. It is my opinion that she lacks capacity therefore to make a will or manage what was her wish the complex task of transfer of land."

Dr Ryan states that dementia is a neurodegenerative disorder for which there is no cure and that there is therefore no prospect that J will regain capacity in the future but that she believes she can manage her own finances and that she does not want to leave anything to her son A or her children and that she does wish to transfer the sole share of the land to DSM.

The Legal Framework

21. Section 1(2) of the Mental Capacity Act 2005 provides that a person must be assumed to have capacity unless it is established that he lacks capacity. Section 1(5) of the MCA 2005 provides that an act done, or a decision made under the Act for or on behalf of a person who lacks capacity must be done or made in his best interests in accordance with section 4 of the Act. Section 3 of the MCA 2005 sets out the test for establishing an inability to make decisions. A person is unable to make a decision for himself if he is unable to understand the information relevant to the decision, to retain that information, to use or weigh that information as part of the process of making the decision or to communicate his decision. The evidence provided by Dr Ryan in the COP 3 establishes clearly that J lacks capacity for the purpose of the MCA 2005. The evidence of Dr Ryan further establishes that the common law test for rebutting the presumption of capacity, as set out in Banks v Goodfellow (1870) LR 5 QB 549 and in Re Beaney [1978] 1 WLR 770, has been made out.
22. In the circumstances, the jurisdiction of the Court of Protection is engaged enabling the court to execute a statutory will for J. The Court is obliged to act in her best interests taking into account all the relevant circumstances (s.4(2)) and 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 benefits 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" (s.4(6))

The Court must take into account, insofar as it is practicable and appropriate to consult them, the views of any deputy (s4(7)(d)), and anyone one engaged with care or interested in J's welfare (s4(7(b)).

23. In Re P [2009] EWHC 163, Lewison J (as he then was) set out that the guidance under the previous Mental Health Acts of 1959 and 1983 were of no longer any direct assistance as under the MCA 2005 facts are to be taken as they are and that the goal of the enquiry is not what P "might be expected" to have done but what is in P's best interests which is more akin to the "balance sheet" approach. The decision maker must consider P's present wishes and feelings and consider "all relevant circumstances" including P's past and present wishes, his beliefs and values and must also take into account the views of their parties as to what would be in P's best interests.
24. Lewison J referred to the decision of HHJ Marshall QC in Re S (unreported 25 November 2008) as a most impressive and sensitive judgement and the conclusion she reached that:

"In my judgment it is the inescapable conclusion from the stress laid on these matters in the Act that the views and wishes of P in regard to decisions made on his behalf are to carry great weight. What, after all, is the point of taking great trouble to ascertain or deduce P's views, and to encourage P to be involved in the decision making process, unless the objective is to try to achieve the outcome which P wants or prefers, even if he does not have the capacity to achieve it for himself.

The Act does not of course say that P's wishes are to be paramount, nor does it lay down any express presumption in favour of implementing them if they can be ascertained. Indeed the paramount objective is that of P's best interests…

25. Lewison J agrees with the broad thrust of this, and other, passages of HHJ Marshall's judgment but thinks that "she may have slightly overstated the importance to be given to P's wishes. First, section 1(6) is not a statutory direction that one "must achieve" any desired objective by the least restrictive route. Section 1(6) only requires that before a decision is made "regard must be had" to that question. It is an important question, to be sure, but it is not determinative. The only imperative is that the decision must be made in P's best interests. Second, although P's wishes must be given weight, if, as I think, Parliament has endorsed the "balance sheet" approach, they are only one part of the balance."
26. Munby J (as he then was) in Re M [2009] EWHC 2525 (Fam) also referred to the weight to be attached to P's wishes and feelings in the context of the 2005 Act and the consideration given to that by HHJ Marshall QC in Re S. He agreed with the broad thrust of both what she said and what Lewison J said but made the following observations:

i) First, P's wishes and feelings will always be a significant factor to which the court must pay close regard;

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…it must depend upon the individual circumstances of the particular case

iii) Thirdly, and 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 (including but not limited to:

a) The degree of P's incapacity;

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;

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; and

e) Crucially the extent to which P's wishes and feelings if given effect to can properly be accommodated with the court's overall assessment of what is in her best interests.

27. I take all these matters into account in reaching my conclusion as to whether there should be a statutory will in place of the will she entered into when she had capacity in June 2010 and, if so, what the terms of that will should be.
28. I do not consider that much, if any, weight should be given to the consideration of whether the terms of any statutory will would mean that J is remembered by her family as "having done the right thing". As Morgan J said in Re G(TJ) [2010] EWHC 3005 (Fam), where the Court of Protection directs the making of a statutory will "Some family members will think that the court had done the right thing and some will think that the court has done the wrong thing."

The factors considered with respect to the Statutory Will

29. In June 2010, J drafted a will which provided that D, and in default of D, RSM, was to receive the entirety of her estate. The will is a relevant written statement (s.4(6)(a) of the MCA 2005) and must be taken into consideration but in my judgment it can only be taken into consideration in the context of which it was made. At that time, A had the house at X Road and she was clearly conscious of that and the attendance note records that "she does not wish him to inherit anything from her estate as he already has the family home of herself and her husband – X Road registered in his name worth £1,000.000.00". However, that statement does not, in my judgment, give the full picture of J's reasoning and her wishes and feelings. It is also clear in the attendance note dated 9 June 2010, made at a time when J had capacity to make a will, that she was expressing that she had a close relationship with D and his children but that she had no relationship with A's children; that she had not spoken to A since her husband had died on 30 December 2009 (which was some 6 months before these instructions for the will were being given) and that the reason for the fall out was the giving of the property at X Road, and that A had been very abusive and aggressive toward her and tried to hit her with a stick.
30. In my judgement, J did have her will drafted in such a way as to ensure that A would not receive any further monies from the estate as he already had X Road. Plainly she did not want him to have any more. But additionally she was clearly stating that she was motivated by the break down in the relationship between herself and A since the death of her husband.
31. While she said in her first statement dated 1 October 2013 that she and her husband always treated their sons equally, that statement was being made in support of the application to have the properties returned to her or to the estate on the basis that the X Road property and the land adjoining Y Road had been transferred to A either under undue influence or because of a clack of capacity. As they treated their sons equally, there was no logical justification for the family home, and principle asset of K and J, to have been transferred into the name of A and not his brother.
32. Consequently while J wished to ensure that D benefitted from the estate on her death and that A did not, partly to ensure some degree of parity between the boys, it was also as a result of her views of A's conduct towards her since the death of her husband and the breakdown in their relationship. While the letter dated 26 April 2010 from her solicitors to her GP set out the reason why she was leaving everything to D as being to equalise the distribution of the estate:

"We were initially instructed to give advice on the prospects of J instituting legal proceedings against A to set aside the transfer. However J now does not wish to go to the expense of bringing legal proceedings against her son A. Instead, she wishes to make a Will leaving all of her estate to her son in order to equalise the distribution of her estate between her two sons, taking into account that A has already been given a property worth around £1,000,000."

The letter also refers to the break down in the relationship with A:

"Understandably there has also been a breakdown in her relationship with her son A who has been abusive and aggressive towards her when she has sought to obtain further information from him regarding the transfer."

33. A denies the allegations of being abusive and aggressive, an allegation she repeated in her evidence in the Chancery claim but there can be no denial that there was a breakdown in the relationship between him and his mother and in my judgment it was that breakdown in the relationship between them that was at least partially the reason for her decision to have a Will that left everything to her other son.
34. In addition to those relevant written statements, it is also necessary to consider her present wishes and feelings (s.4(6)(a) of the MCA 2005). Those wishes and feelings are recorded in a number of different meetings.
35. On 4 February 2015, the applicant met with J in order to identify her wishes and feelings. D, amongst others (including the solicitor and the translator), was present in that meeting. The attendance note indicates that she wanted the estate to go to her family and when it was put to J that the remainder of estate was to be split equally between the two sons she responded "No need to give to my younger son because he never comes to visit me". It was recorded that J was getting angry and shouting and upset when it was suggested that money should go to anyone else. I accept on the evidence I have had presented before me that A and his wife do visit J on occasion however, I am satisfied that D and his wife visit more frequently and give more care to her and that they are more available to do so due to the working commitments of A and his wife. Whatever the reasons for the difference in the amount of time they spend with J it does not make her wish to see D benefit from the estate because he and his wife spend more time with her irrational.
36. On 3 June 2015 there was another meeting between the applicant and J, attended by others including the solicitor, the translator and D. She gave instructions that she was happy for DSM to have a half share in the land as he is co-owner of the property Y Road and the land goes with the property and therefore he should have a half-share in the land too. She also said

"many times that she wished for all of her estate to go to D as A doesn't visit her and became upset when we explained the terms of the settlement reached that the applicant would make application for a statutory Will for all of her estate to be divided between A and D in equal shares. We did say that we would record her wishes in a letter of wishes (or record them in the witness statement). We would discuss this with Counsel.

We asked about the £250,000 which she gave to D which money originated from her late husband. She said she wanted D to have this money. D says there is £100,000 left. £50,000 was used for repairs on Y Road and £100,000 on legal fees (some to us and some to India)."

She also wanted D to have all cash held in the bank accounts and to deal with her funeral arrangements. It is important to note that she got upset when it was explained to her that the deputy was obliged, under the terms of the schedule, to make an application for a statutory will with the estate dividing equally to both D and A. In my judgment, her expressed wishes and feelings were clear and dearly held: namely that everything was to go to D and nothing to A.

37. In the COP 3, Dr Ryan recorded that J " …she has repeated that she does not want to leave anything to her son A or his children".
38. In a meeting on 27 January 2016, J said that "Whoever is looking after me should get my estate" and that nothing should go to A as he did not come to his father's funeral. Neither D nor his wife JSM were present at that meeting although JSM let the applicant, the solicitor and the translator into the house. J said that she had not seen A since he was born. This shows confusion on J's part, but she is again clear that she does not want A to benefit from the estate.
39. A Court of Protection General Visitor, Christine Gaukroger, was instructed by the Official Solicitor to visit J. She undertook her visit on 23 April 2016, in the presence of a Punjabi interpreter, and wrote her report on 26 April 2016. D, JSM and their son RSM invited the Visitor and the interpreter into the house and introduced them to J. Again, they were not present at the meeting.
40. The Report provided that J said, and repeated it a number of times throughout the meeting, that her younger son never came to visit her. He never sees her or helps her, especially after her husband died and she did not want to give anything to him, not a single penny. The Visitor described her as being "adamant" and "quite animated "when discussing this. She further said that A never came to see her whereas D and his wife and son came to look after her and that she thought of A and his wife as dead. She also referred to D being her eldest son and that he looked after her and that was why she wants to leave things to him and his family. I accept the evidence from A and his wife, evidenced by some photographs, that they do visit her from time to time. However, I am also satisfied on the evidence I have heard, that D and his wife spend a much greater time with J.
41. On 25 May 2016, the applicant again went to see J. On that occasion A, KKS and two of their daughters were present. The meeting had been called as a result of the declaration that had been made by J that she did not want A to inherit a share in her estate. When the applicant set out that "J has declared to me that she prefers one son against the other because the one son does not visit her as much as the other one and has little contact with her. Notwithstanding that, in accordance with the court order we have proceeded to draw a document recognising the agreement. When the Court visitor came to see J, she expressed her wishes that one son should be preferred against the other. Rosetta [the solicitor for A] has pointed out to me that that is not necessarily the case as there have been occasions where she has expressed the view of equal division between her sons. If that is the case, could she confirm what her instructions are. If she feels under pressure then only the lawyers should be present and the family should leave." J's response to that was "What is this about. There is no dispute between us (looking at A). There is no problem. I want my two sons to have an equal share. Everything is clear they must get 50/50 between them. They are my children, I will look after them. I will do what I want." She was asked why she had told the Court Visitor something different, and at that point became angry and started shouting at them to leave the house.
42. It is contended on behalf of the Official Solicitor that of the six occasions when she has expressed a wish, in five she has expressed a wish to leave the entirety of the estate to D. The only occasion in which she said she wanted the property to be split 50/50 was when A was there.
43. It is said on behalf of A that J has merely reacted to whoever was present at the time and, even though A was present when she suggested a 50/50 split, on the other five occasions D and/or his wife were present. In fact they were only present in two of the meetings and they only allowed the visitors into the house on two other occasions. On the basis of the evidence I have heard about J I would not consider her thinking to be so sophisticated that she would feel the need to express a wish to leave her estate to D just because either he or his wife are in the house but not present with her. Further, it is to be noted that other than in the meeting with A, J wished to leave all her estate to D. When A is there she says 50/50. Such a wish accords with the agreement that had been entered into as being the basis upon which the Deputy would apply for a statutory will and is more consistent with A having endeavoured to influence her, basically telling her that what she should be asking for is a statutory will divides the estate 50/50. A had previously been accused by J to have exercised undue influence over her husband for the purpose of obtaining X Road and, while he expressly did not admit to such behaviour in the Chancery proceedings, he decided not to defend the claim and accepted the declarations being made setting aside the transactions on the basis that the Deputy would apply for a statutory will with a 50/50 split. While there are no express admissions by A he did take the decision not to defend and rely upon the Deputy being under an obligation to make an application.
44. A alleged that his mother made accusations against each brother in turn depending upon who was there. No such accusations against D are contained in the attendance note dated 25 May 2016 when A was present. He alleges it was said but not recorded. I heard him give evidence on this point but I did not consider him to be an honest or credible witness. The allegations that had previously been made against A had been reported by the Interpreter and I have no reason to consider that any such allegation would not have been recorded if made against D. Plainly such an allegation is an important matter in the context of this case and in seeking to ascertain the wishes of J and whether they are rational beliefs.
45. I also heard evidence from the applicant on this point and he was clear that, while there were points during the meeting of 25 May 2016 when J became agitated and was shouting in Punjabi, during that time she did not at any point mention the name D and the Interpreter did not report any allegations of wrongdoing against D. I do not accept that J was making allegations against each brother in turn. J's complaint, as it has been since at least 2010 when she had capacity, is against A.
46. While there is plainly confusion in the mind of J, including at one point saying that she had not seen A since he was born, I am satisfied that she was expressing a clear view during this time that her wish is for D to inherit the estate. In the statement made to Dr Ryan and when visited by the Court of Protection General Visitor, J is clear in her expressed wishes. No member of the family was present at those meetings and given her memory issues I do not consider that she could realistically have been pressurised into saying something she did not want to and to hold that pressurised view until such time as she came to talk to the GP and the Visitor. That is an unrealistic hypothesis. Further, both the GP and the Visitor are professionals who would be alert to any indications that the views being expressed were not genuine ones and they do not express any such concerns that J was being unduly pressurised to say things against A. However, I am concerned that in the meeting where A was present she was only saying there should be a 50/50 split was because he had influenced her to say that.
47. I reject the submissions made on behalf of A that these expressions of her wishes should not be given any or much weight. I consider them to be cogent and they are consistent with the views that she held when entering into her will in 2010, at a time when she had capacity.
48. In addition to considering her past and present wishes and feelings, it is important to consider the beliefs and values that would influence J's decision and any factors that she would consider if she were able to do so.
49. I consider that J would have taken into account the fact that A had taken both the family home and the land adjoining Y Road, either by exercise of undue influence or because K was lacking capacity, even though they are now restored to J after the court proceedings. I consider that she would have considered these as important matters and that they would have influenced her decision. I further consider that J would have taken into account the fact that she was required to take proceedings against A, and incurred substantial costs in doing so, in order to recover the properties even though it is to his credit that he did not fight the case but came to a compromised settlement. I also consider that she would have taken into account the breakdown in her relationship with A even if that breakdown did not go so far as him being aggressive and abusive towards her. She would also have taken into account the fact that A attempted to evict J from the family home after the death of her father. All of these matters could support a conclusion that any will should exclude A.
50. Balanced against this, however, is that J has earlier said that she and her late husband had sought to treat both of the sons equally and the purchase and transfers of property support that there was a desire for there to be equality. It would be traditional for the estate to be divided between the two sons.
51. In my judgment J would not have wanted to leave A totally out of inheriting anything now that the family home and the land adjoining Y Road have been restored to her. In my judgment, she would also acknowledge the fact that A had compromised the undue influence claim and that the basis of the compromise was that the Deputy would apply for a statutory will on terms that the estate would be left equally to both D and A. A must have been advised that the terms of the compromise did not bind the Court of Protection and that it would be for the Court to determine in accordance with the provisions of the MCA 2005. I do not accept the suggestion or threat made by A that a failure of the Court to determine that the statutory will should leave the estate in equal shares to both the sons would leave J at potential risk of litigation. I do not accept that it could realistically be argued that there has been a breach of the agreement contained in the order. The Deputy has done exactly that which he was required to do, in seeking an order for a statutory will with the estate to be divided equally.
52. It is in the best interests of J for a statutory will to be executed on her behalf whereby three quarters of the residuary estate goes to D, and to RSM should he predecease J, and the remaining quarter should go to A, and to his children should he predecease J.

The transfer of the beneficial interest in Land

53. With respect to the land adjoining Y Road, it is proposed that a transfer of 50% of the beneficial interest is made to DSM. The estimated value of that proposed transfer is approximately £20,500. Her estate is worth approximately £3,084,988. Hence the transfer is not going to cause her hardship or impact upon her future needs.
54. The proposed transfer of the property is in J's best interests as it accords with her consistently expressed wishes and deals with any uncertainty as to whether claims could be brought to recover that land. The Deputy makes the application on her behalf and the Official Solicitor and A both accede to the application.

Conclusion

55. I will give authority to execute a statutory will so as to leave J's estate ¾ to D and ¼ to A and further I give authority and to transfer the piece of land adjoining Y Road pursuant to the provisions of section 18(1)(i) and 18(1)(b) of the Mental Capacity Act 2005.
56. Counsel for the Deputy, the OS and for A should ensure that discuss the terms of the order and the statutory will in order that the same can be dealt with at the same time as the handing down of this judgement.

HHJ KAREN WALDEN-SMITH
18 November 2016