England and Wales High Court (Chancery Division) Decisions

IN THE COURT OF PROTECTION
(In Private)

		Manchester Civil Justice Centre 1 Bridge Street West Manchester M60 9DJ
		16 August 2010

His Honour Judge Hodge QC:

Introduction

1. This is the hearing of an unopposed application under the Mental Capacity Act 2005 for an order authorising the deputy of a protected person, Mrs D, to execute a statutory will in her name and on her behalf. By the consent of the parties, the hearing has proceeded in private as a hearing on paper only without any of the parties attending. Mrs D is represented in the proceedings by the Official Solicitor. I have had the benefit of a position statement prepared for the Pre-Trial Review by counsel instructed by the Official Solicitor, Mr David Rees; and of written submissions prepared for this hearing by counsel instructed on behalf of the applicant, Mr Nigel Ginniff. Pursuant to rule 91 (2) (b) of the Court of Protection Rules, I authorise the publication of the text of this anonymised judgment.

The background

2. Mrs D is a widow who was born on 26 June 1922. The applicant, Mrs C, who was born on 18 June 1943, is Mrs D's elder daughter. The respondents to this application are Mrs D and her remaining two children, Mr D, born on 12 April 1945, and Mrs S, born on 12 April 1947 (who are Mrs C's half-brother and half-sister). Mrs D suffered a stroke on 26 December 2003 which, according to Mrs C, left her unable to communicate coherently. Mrs C states that she had entertained concerns about her mother's mental state as early as 2002. The affairs of Mrs D first came before the Court of Protection in 2007 when, on Mrs C's application, an Enduring Power of Attorney in favour of Mr D, purportedly signed by Mrs D on 26 January 2003 and registered on 27 April 2007, was revoked with immediate effect. A letter dated 26 November 2007 from the Office of the Public Guardian, which enclosed the relevant Court Order, explained that "the Court has stated that the EPA is clearly a forgery – it was purportedly signed on 26 January 2003 but the form is marked Crown Copyright 2005, printed September 2005." Early in 2008, Mrs A, a partner in a firm of solicitors in Fleetwood, was appointed to act as Mrs D's property and affairs deputy; and by an order dated 14 January 2008, Mr D and Mrs S were ordered to deliver to Mrs A all financial documentation relation to Mrs D; and they were forbidden from acting in respect of her affairs. At a hearing before DJ Ashton on 1 May 2008, Mr D and Mrs S both accepted that sums of money and investments transferred to them from Mrs D were held on her behalf and should now be transferred back to the deputy, subject to the deduction of any expenditure incurred on their mother's behalf. A witness statement from the deputy dated 9 July 2010 records that Mr D has repaid £46,000 (retaining in excess of £10,000 for expenses incurred in looking after his mother at his home in Salford for some 18 months); and Mrs S has accounted to the deputy for investments belonging to her mother valued at some £85,000. It would appear that there is a not insignificant part of Mrs D's estate for which a full account has not yet been provided.
3. On 25 September 1995 Mrs D had duly executed a Will, drafted by a firm of solicitors in Fleetwood and witnessed by 2 clerks employed by that firm. She appointed Mr P and Mr D to be her executors and trustees. She left a pecuniary legacy of £1,000 (free of inheritance tax) to each of her grandchildren living at the date of her death. (At that time, Mrs C had 5 children, Mr D had 5 children, and Mrs S had one adult son.) Mrs D made specific gifts (free of inheritance tax) of items of her jewellery to each of her three children. She left the residue of her estate to her trustees upon the usual trusts for sale and conversion; and she directed that the sale proceeds should be held upon trust for her three children in equal shares absolutely, with provision for the adult children of a deceased child to take, if more than one equally, the share of their deceased parent.
4. On 7 July 2004, Mrs D made a further Will, drafted by the same firm of solicitors in Fleetwood and witnessed by a clerk and a legal executive employed by that firm. Again she appointed Mr P and Mr D to be her executors and trustees; but this time she left her entire estate to her younger daughter, Mrs S, absolutely (with provision for her adult children to take, if more than one equally, should Mrs S predecease her). A contemporaneous letter of wishes, addressed to Mrs D's executors and trustees, explained that Mrs D had not wished to make any provision for her son, Mr D, as in her opinion "he already has sufficient assets of his own".
5. At a hearing before DJ Ashton (sitting as a nominated judge of the Court of Protection) on 1 May 2008, attended by Mrs D's three children, the deputy raised the possibility of the need for a statutory will. DJ Ashton ordered that a copy of the solicitors' file relating to the making of the 2004 Will should be sent to him. This was done; and, having considered the papers, on 8 July 2008 (and without a hearing) DJ Ashton ordered that Mrs D's deputy was not to apply for a statutory will. In a note accompanying his decision, DJ Ashton explained that: "The interview notes merely recorded the testamentary intentions and did not state who gave the instructions or who was present at the interview…Although the file note is inadequate and does not reveal any consideration of undue influence or testamentary capacity, the 2004 Will was made under the guidance and supervision of the same reputable local firm of solicitors who made the 1995 Will. It is only the role of the Court of Protection to authorise a statutory will when there has been a material change of circumstances or there is a vacuum. It is not the role of this Court to adjudicate upon disputes as to the validity of Wills. There is no basis for requiring the finance Deputy to apply for a statutory will on the evidence presently available."

The application

6. In May 2009 Mrs C applied to the Court of Protection for an order that the deputy be authorised to execute a statutory will for Mrs D. By this time, the Fleetwood solicitors who had prepared the two earlier wills had discovered a further purported will of Mrs D dated 10 October 2006. This document would appear to be a home-made will, drafted without the involvement of solicitors. Although it employs some legal terminology, its use is not always entirely appropriate; and its drafting would be critically received in Chancery chambers in Lincoln's Inn. The document purported to appoint Mr D to be the sole executor and trustee, and to give half of Mrs D's estate to each of Mr D and Mrs S (with no survivorship provisions). In her witness statement dated 5 May 2009 in support of her application, Mrs C asked the Court to order the execution of a statutory will in the light both of her mother's asserted incapacity to make a valid will in 2004 and 2006 and "of the material change of circumstances that occurred by reason of the actions that my sister and brother have taken since my mother's stroke and the influence they have sought to impose for their own benefit instead of for the care of my mother".
7. That application came before DJ Ashton on paper on 1 December 2009 when he refused permission to apply for a statutory will. In the accompanying notes of his decision, he recorded that it appeared likely that Mrs D would have lacked testamentary capacity in 2006, and that questions might arise as to whether there had been undue influence. However, he reiterated his earlier view that it was "only the role of the Court of Protection to authorise a statutory will when there has been a material change of circumstance which make existing testamentary provision inadequate or there is a vacuum. It is not the role of this Court to adjudicate upon disputes as to the validity of Wills during the lifetime of the testator. If a Will was validly made the Court of Protection should not, [absent] a material change of circumstances, interfere with it because it represents the wishes of the testator and these should be respected. To consider authorising a statutory will in this case would be to become embroiled in a family dispute as to which sibling should receive mother's money. That would not be appropriate."
8. Mrs C requested a reconsideration of DJ Ashton's order. At a hearing in Kendal on 25 January 2010, attended by Mrs C's counsel, and made without notice having been given to any other party, DJ Ashton set aside his order of 1 December 2009. He permitted the application to proceed as an application for a statutory will, rather than for a direction that the deputy should apply for one. In the recitals to his order, DJ Ashton recorded that: (1) The Court was satisfied on the evidence previously presented that Mrs D lacked both testamentary and litigation capacity. (2) After further consideration of its earlier refusal, the Court accepted that, in the context of this application, there was a "significant issue of interpretation" under the Mental Capacity Act 2005 that needed to be addressed at a contested hearing, namely: "Whether it may be appropriate for this Court to authorise a statutory Will for an incapacitated adult on the ground that this is in his or her best interests where there is a dispute or uncertainty as to the validity of a recent Will which departs from the terms of an earlier Will". (3) The Court was concerned that to exercise the jurisdiction in these circumstances "would encourage many applications where the substantive issue is the validity of a new will made when there was doubt as to testamentary capacity or concern as to undue influence and this Court would be ill-equipped to resolve these disputes". The district judge's substantive order went on to direct that the parties to the proceedings were to be Mrs C, as the applicant, and Mrs D and her other two children as respondents; and he directed the applicant to serve sealed copies of the order, with the application and supporting witness statement, upon the respondent son and daughter, the deputy and the Official Solicitor (as the prospective litigation friend of Mrs D). In the interests of costs, the deputy was not joined as a party; but the Order provided that she might apply to be joined, and might submit a statement on her own initiative without becoming a party. The application was referred to one of the Chancery Circuit Judges in Manchester (sitting as a nominated judge of the Court of Protection) in view of the significance of the issue identified by the district judge; and he was to give further directions in due course.
9. The matter came before me, sitting in Manchester, for a pre-trial review on 15 June 2010. I heard from counsel for the applicant, from counsel (Mr David Rees) instructed by the Official Solicitor (on behalf of Mrs D), and from Mr D and Mrs S as litigants in person. I gave directions for the filing of further evidence, and I listed the matter for a final hearing before me in Manchester today; but I directed that, if all the parties agreed in writing, the hearing might proceed as a hearing on paper only, without the need for attendance. In the event, the parties, and the deputy, have all agreed, in the interests of saving costs (which will ultimately fall to be borne by Mrs D), that this hearing should proceed by way of a paper hearing only.
10. The evidence for the applicant comprises 3 witness statements from Mrs C (in virtually identical terms) dated 5 May 2009, 30 November 2009, and 25 January 2010, and a further witness statement from Mrs C dated 23 July 2010. There is a witness statement from the deputy dated 9 July 2010. There are 2 witness statements from Mrs S, both dated 5 August 2010. There is also an unsigned letter dated 22 July 2010 from Dr Hariharan Venkataraman, Mrs D's general practitioner, confirming that Mrs D lacks capacity on the grounds of permanent impairment of cognitive function in the form of vascular dementia, and that she is unable to understand, retain or reproduce any information given to her. The doctor is unable to comment on her mental state "at the time the original will was drafted."
11. The proposed statutory will provides for the appointment of Mr P and the deputy as Mrs D's executors and trustees. It provides for pecuniary legacies of £1,000 (free of inheritance tax) for each of Mrs D's grandchildren living as at the date of her death. It provides for the residue of Ms D's estate to pass to her three children in equal shares absolutely (with provision for her adult grandchildren to take the share of any child who predeceases Mrs D). By a letter dated 18 June 2010, Mr D consents to a statutory will being prepared on the basis that, whilst he acknowledges that, in his mother's last will, she did not wish Mrs C to benefit from her estate, he also believes that she would not have wanted her children to seek recourse to litigation. Initially, in a letter to the court dated 25 June 2010, Mrs S objected to the grandchildren having a share of the estate on the basis that she claims they rarely came to see her mother, and also because her brother and half-sister have five children each, whereas she only has one. However, in a later letter to the court dated 6 August 2010, Mrs S indicated that the terms of the draft statutory will were agreed, although "only to save on costs". In a letter to the court dated 10 August 2010, the deputy's solicitors confirm that they agree the contents of the proposed statutory will.

The applicable law

12. I am satisfied, on the evidence, that Mrs D lacks testamentary capacity. Whilst all relevant parties consent to the terms of the proposed statutory will, that cannot be conclusive because the execution of a will for a protected person is a decision which must be made by the Court itself, and cannot be entrusted to a deputy: see section 20 (3) (b). In determining whether to order the execution of a statutory will for and on behalf of a person who lacks capacity, the court must act in that person's "best interests": see section 1 (5). That concept is explained in section 4, which requires the Court to consider all the relevant circumstances and, in particular, to apply a structured decision-making process. The Court is required to consider, so far as is reasonably ascertainable, (a) the protected 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. The Court must also take into account, if it is practicable and appropriate to consult them, the views of (amongst others) anyone engaged in caring for the person or interested in his welfare, and any deputy appointed for the person by the Court, as to what would be in the person's best interests.
13. In Re P (Statutory Will) [2009] EWHC 163 (Ch); [2010] Ch 33, Lewison J at [36] – [45] indicated that the 2005 Act marked a radical change in the treatment of persons lacking capacity. The overarching principle was that any decision made on behalf of a protected person must be made in his best interests. That was not (necessarily) the same as inquiring what the protected person would have decided if he or she had had capacity. Best interests was not a test of "substituted judgment" (what the person would have wanted), but rather required a determination to be made by applying an objective test as to what would be in the protected person's best interests. Having followed a structured decision-making process, the Court must then form a value judgement of its own, giving effect to the paramount statutory instruction that any decision must be made in the protected person's best interests. A protected person's expressed wishes should not be lightly overridden, since adult autonomy is an important part of the overall picture. But what will live on after the protected person's death is his memory; and for many people it is in their best interests that they should be remembered with affection by their family, and as having done "the right thing" by their will. The decision maker is entitled to take into account, in assessing what is in the protected person's best interests, how he would be remembered after his death.
14. In the later case of Re M [2009] EWHC 2525 (Fam) at [28], Munby J described Lewison J's judgment as one of "compelling force". Later, at [32], Munby J made three points: (1) that the 2005 Act laid down no hierarchy as between the various factors listed in section 4 which had to be borne in mind, beyond the overarching principle that what was determinative was the judicial evaluation of what was in the protected person's "best interests"; (2) that the weight to be attached to the various factors would, inevitably, differ depending upon the individual circumstances of the particular case; and (3) that in any particular case, there might be one or more features or factors which were of "magnetic importance" in influencing or even determining the outcome. At [35], Munby J observed that (1) the protected person's wishes and feelings would always be a significant factor to which the Court must pay close regard; (2) the weight to be attached to the protected person's wishes and feelings would always be case-specific and fact-specific; and (3) in considering the weight and importance to be attached to the protected person'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 the protected person's incapacity; (b) the strength and consistency of the views being expressed by the protected person; (c) the possible impact on the protected person of knowledge that her wishes and feelings were not been given effect to; (d) the extent to which the protected person's wishes and feelings were, or were not, rational, sensible, responsible, and pragmatically capable of sensible implementation in the particular circumstances; and (e) crucially, the extent to which the protected person's wishes and feelings, if given effect to, could properly be accommodated within the Court's overall assessment of what was in his best interests. At [37] and [38], Munby J reiterated Lewison J's emphasis upon the importance of the protected person's interest in being remembered for having done the "right thing".
15. As recorded at paragraph 8 above, DJ Ashton was concerned that one consequence of exercising the jurisdiction to direct the execution of a statutory will in any case where there was a dispute or uncertainty as to the validity of a recent will due to concerns about a possible lack of testamentary capacity (or want of knowledge and approval) or the possible exercise of undue influence might be to encourage many applications to the Court of Protection raising issues which that Court would be ill-equipped to resolve. Given DJ Ashton OBE's unrivalled experience of the work of the Court of Protection outside London, that is a concern that cannot lightly be dismissed. Indeed, one of the points made by Munby J in Re M (cited above) at [50] was that the Court of Protection has no jurisdiction to rule on the validity of any will. It may well be impractical, and inappropriate, for that Court to embark upon a detailed investigation of all the evidence necessary to resolve a dispute as to the validity of a will made by a protected person. Nevertheless, as with the exercise of any jurisdiction under the 2005 Act, the overarching consideration, when deciding whether to direct the execution of a statutory will, must be a judicial evaluation of what is in the protected person's "best interests", having considered "all the relevant circumstances".
16. It would seem to me that the concerns outlined by the district judge are factors which the Court may take into account when deciding whether to order the execution of a statutory will; and they might, in an appropriate case, lead the Court to conclude that it should not exercise its power to do so. But, in my judgment, there can be no presumption, still less any principle of general application, that the Court should not direct the execution of a statutory will in any case where there is a dispute or uncertainty about the validity of a recent will, the terms of which depart from those of an earlier, apparently valid, will. The adoption of such an approach would tend to elevate one factor over all others, contrary to the structured decision-making process required by the 2005 Act. Like Lewison J in Re P (at [41]), I would prefer not to speak in terms of presumptions. Under section 4 (6) (a), one of the relevant factors to be considered by the Court in determining the protected person's best interests are that person's past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity). A previous will is obviously a relevant written statement which falls to be taken into account by the Court. But the weight to be given to it will depend upon the circumstances under which it was prepared; and if it were clearly to be demonstrated that it was made at a time when the protected person lacked capacity, no weight at all should be accorded to it. Moreover, Parliament has rejected the "substituted judgment" test in favour of the objective test as to what would be in the protected person's best interests. Given the importance attached by the Court to the protected person being remembered for having done the "right thing" by his will, it is open to the Court, in an appropriate case, to decide that the "right thing" to do, in the protected person's best interests, is to order the execution of a statutory will, rather than to leave him to be remembered for having bequeathed a contentious probate dispute to his relatives and the beneficiaries named in a disputed will. I therefore hold that the Court of Protection should not refrain, as a matter of principle, from directing the execution of a statutory will in any case where the validity of an earlier will is in dispute. However, the existence and nature of the dispute, and the ability of the Court of Protection to investigate the issues which underlie it, are clearly relevant factors to be taken into account when deciding whether, overall, it is in the protected person's best interests to order the execution of a statutory will.

The decision

17. I must now proceed to apply the law to the facts, adopting the structured decision-making process enjoined by the 2005 Act, as helpfully elucidated and explained by Lewison and Munby JJ in Re P and Re M.
18. Mrs D does not presently have testamentary capacity, and there is no prospect that she will do so in the future. The Court must therefore act in her best interests. It is not possible to ascertain Mrs D's present wishes and feelings; and that state of affairs is unlikely to change in the future. The terms of Mrs D's 1995 Will afford a clear, coherent, rational, sensible, responsible and realisable expression of her then wishes. They clearly indicated an intention to benefit all eleven of her grandchildren to the extent of £1,000 each; to divide her jewellery between her three children; and to leave the remainder of her estate equally between her three children, with the share of any child who pre-deceased her passing to that child's child or children. Those wishes were apparently maintained for almost 9 years from September 1995, and until after Mrs D had suffered her stroke.
19. In July 2004 Mrs D duly executed a fresh Will which was drafted by the same reputable local firm of solicitors who had been responsible for drafting and making her previous Will. On its face, that Will was validly made and amounted to a fresh expression of her testamentary wishes. However, whilst Mrs D explained her reason for excluding her son from any benefit under her new Will, she provided no reason for excluding either her grandchildren or her elder daughter, or for leaving her entire estate to only one of her 3 children. On the applicant's evidence, there are some grounds for questioning the validity of the 2004 Will as a true and valid expression of Mrs D's testamentary wishes; and there is no disinterested evidence which addresses those concerns. In particular, no evidence has been adduced from any representative of the firm of solicitors who acted in the drafting and execution of the 2004 Will notwithstanding (1) the points made in DJ Ashton's notes of his decision of 8 July 2008 (cited at paragraph 5 above) and (2) the fact that the Official Solicitor had indicated (at paragraph 28 (c) of his Position Statement dated 14 June 2010, prepared for the purposes of the Pre-Trial Review herein) that the parties might wish to consider addressing the circumstances surrounding the preparation of the 2004 and 2006 Wills in their evidence.
20. There are even more serious concerns as to the validity of the purported 2006 Will. This document was apparently made without any involvement on the part of solicitors. It purports to have been executed only some 8 months before the registration of the forged Enduring Power of Attorney. No explanation is given for the apparent change of mind on the part of Mrs D in including her son as an equal beneficiary with his younger sister when he had been expressly excluded from any benefit little more than 2 years previously. No evidence has been provided of the circumstances surrounding the preparation and execution of this document (despite the critical observations of DJ Ashton in the notes of his decision on 1 December 2009, recorded at paragraph 7 above); nor is there any explanation as to why the existence of the 2006 Will was not disclosed to the Court of Protection during the course of 2008.
21. It is not appropriate for me to rule upon the validity of either of the Wills purportedly made in 2004 and 2006 since I have not been presented with all the evidence which it would be necessary for me to hear if findings of fact were to be made on these issues; nor is it necessary for me to do so. In the particular circumstances of the instant case, I am satisfied that sufficient doubts have been raised as to the validity of each of those Wills to lead me to conclude, on the specific facts of this case, that the best interests of Mrs D dictate that I should, here and now, set to rest all concerns about her true testamentary wishes by ordering the execution of a statutory will, rather than leaving her estate to be eroded by the costs of litigation after her death, and her memory to be tainted by the bitterness of a contested probate dispute between her children (which may extend to members of the next generation). I am fortified in this conclusion by the fact that my view is shared by Mrs D's deputy, by the Official Solicitor (who represents Mrs D's interests), and by all three of her children.
22. I am entirely satisfied that the terms of the statutory will should reflect the terms of the draft which has been agreed by the Official Solicitor, by all three of Mrs D's children, and by her property and affairs deputy. Apart from the disposal of Mrs D's jewellery, and the appointment of the deputy as an executrix in place of Mr D, that Will mirrors the provisions made in Mrs D's indisputably valid last Will made in 1995. It accords with my assessment of the beliefs and values that would be objectively likely to have influenced Mrs D's testamentary wishes if she had possessed the requisite testamentary capacity. On the evidence before me, there is no reason to question Mrs D's commitment to all three of her children prior to the deterioration of her mental faculties. (In this connection, I disregard the contents of a letter dated 30 July 2010 which I received from JP, a friend of Mrs S and her mother, containing observations disparaging of Mrs C, since this was neither verified by a statement of truth nor tested in evidence; indeed, its arrival at court was not foreshadowed by any of the parties.) In the light of Mr D's behaviour over the forged Enduring Power of Attorney, it is appropriate that he should be replaced as one of Mrs D's executors and trustees by her property and affairs deputy, who is a practising solicitor. However, neither such behaviour, nor the nature of his dealings, and those of Mrs S, with their mother's assets leads me to the view that it would be in the best interests of Mrs D to exclude either Mr D or Mrs S from an equal share of Mrs D's estate with their half-sister, after provision has been made for pecuniary legacies of £1,000 to each of Mrs D's grandchildren (consistently with the wishes expressed in her 1995 Will). But I agree with the submission of Mrs C's counsel that, in all the circumstances of the present case, it is not in the best interests of Mrs D for her estate to pass, on her death, solely to her two children who, without due authority, took control of its assets during her lifetime. By ordering the execution of a statutory will in the agreed terms, Mrs D's family will be able to remember her as having done the "right thing" by her last will.

Order

23. For the reasons I have set out above, I shall order as follows: (1) Mrs D's property and affairs deputy shall be authorised to execute a will in the terms of the agreed draft in the name and on behalf of Mrs D. (2) When executed, the statutory will is to be held in safe custody in the name of Mrs D by the deputy's solicitors and is to remain so held (during Mrs D's lifetime) to the directions of the Court. (3) A detailed assessment of the costs of and incidental to this application of the Applicant, the deputy, and the Official Solicitor is to be carried out on the standard basis and the sums so certified are to be paid from Mrs D's funds. The file should now be returned to the Court of Protection in London.