When it comes to questions regarding lifetime mental capacity, the Court of Protection generally has the final word. This can be particularly useful in cases involving wills. For instance, whilst a person must have capacity to make a valid will and, to that end, must meet the well-known and oft cited test. In the 1870 case of Banks v Goodfellow, where an individual has lost capacity it is possible to make an application to the Court of Protection to order a “statutory will” to be made on behalf of that individual. The court derives this power from s.18(1)(i) Mental Capacity Act 2005, hence the reference to it being a statutory will.

The benefit of a statutory will is that it is generally accepted that it cannot later be challenged by a disgruntled beneficiary on the usual grounds of:

  • lack of due execution;
  • lack of capacity;
  • lack of knowledge and approval;
  • undue influence;
  • fraud or;
  • it was a forgery.

ADS v DSM was an appeal by one of two sons (A) of an incapacitated woman (P) whose initial statutory will divided her estate as to 25% to A and the remaining 75% to her other son, (D). This was despite the fact that P’s property and financial affairs deputy had originally made an application for a statutory will to divide P’s estate equally between A and D. At first instance, the Court of Protection, largely following arguments advanced by the Official Solicitor, took the view that A should have a greater share of P’s estate than D. As with many cases heard in the Court of Protection, the parties to this case have the benefit of an anonymity order.

The Court of Protection allowed the appeal on the basis of “failures in … very basic steps in the preparation of a case in which there is or may be a factual dispute”. In doing so, Charles J sought to adopt a formulaic approach to the appeal although the judgment itself is perhaps not the clearest.

He first looked at the approach to be taken by the court in statutory will applications and, in particular, the affirmation in In re P (Statutory Will) [2010] Ch 33 that the test for statutory wills is not a substituted judgment test, namely “what would P have done”, but rather a best interests judgment. That latter test takes into account all the circumstances of the case which can, and often does, include a person’s best interests albeit that it is not contingent on doing so. This, as it transpired, was particularly important for A in the instant case as evidence had been adduced that P had frequently expressed a desire to disinherit him.

Another crucial factor often considered by the court and cited by Charles J was how the incapacitated party would be remembered after their days and, specifically, if they would be remembered as having “done the right thing”. This, Charles J felt, was a factor to which the judge at first instance had given too little weight.

Charles J concluded in this regard that in relation to the instant case the following factors ought to have been taken into account:

  1. how P’s capacity at the times she made relevant statements is to be taken into account in assessing their weight;
  2. whether assertions made by P in connection with her expressions of her testamentary intentions have a sound factual base and so could be said to be rational, sensible and responsible;
  3. whether P was the victim of any inappropriate influence when expressing her testamentary wishes and feelings;
  4. how the terms of any statements of testamentary wishes, feelings or representations made by or on behalf of P to or about A should be taken into account; and
  5. what disputes of fact had to be resolved to enable the Court of Protection to assess these factors correctly.

The fact that these factors were seemingly not taken into account led Charles J to find that the judge at first instance had erred in principle and/or had failed to take into account factors which she ought to have.

Charles J then went on to consider the relevance of the factual background, specifically litigation between P and A, and what he termed other “background family disputes”. He held that:

  1. neither he, nor the judge at first instance, were in a position to make any conclusions regarding the various allegations; and
  2. unless and until any findings of fact are made by a court, any reasonings must be based upon agreed or established facts and allegations.

He accordingly allowed the appeal and stressed that no judge could make a factual judgment based on the evidence before it.

Whilst the judgment itself is rather confusing in places, the case does act as a salient reminder to practitioners who may, perhaps, be broadening their practices to include Court of Protection work to ensure that, when making a statutory will application:

  1. all relevant issues of fact and law are identified;
  2. professionals, in particular, ensure they ascertain the wishes and feelings of P;
  3. that, if there are any civil proceedings involving P, any settlement or order records as much information as possible to assist in the determination of a subsequent statutory will application, to include, for instance, whether the settlement is dependent on a particular outcome in the Court of Protection and more generally how the Court of Protection will be invited to approach the settlement that P has entered into with court approval, how P’s wishes and feelings (as a protected party) about the settlement should be sought and recorded, and who the likely parties to the Court of Protection proceedings will be; and
  4. there may be a need in some cases for the Court of Protection, when inviting the Official Solicitor to act on behalf of P, and for the Official Solicitor when deciding whether or not to accept such an invitation, to consider whether a professional deputy should make the application for P or act for P at least until it is made clear whether there is or is not a dispute.

In addition, Charles J provides further guidance for practitioners whilst interviewing P when there are allegations of undue influence. Charles J was critical of the parties, including a Court of Protection visitor, for interviewing P at the house of her son, where she lived, whilst her son or members of his immediate family were elsewhere in the property. In view of the allegations of undue influence in the case Charles J believed P should have been taken to a “neutral venue” by somebody independent of the family and interviewed there.

Whilst there is inevitably a balance required between eliminating undue influence as far as possible and providing P an opportunity to express her wishes or feelings. Practitioners are understandably cautious that the additional safeguard of an independent person, albeit professional, removing P from her home to obtain her wishes would, in practice, materially alter the outcome.

As a starting point, P is faced with the prospect of meeting a potential stranger to discuss what she would like to happen to her property after her days. There is a real danger that taking this additional step could exacerbate any pre-existing anxiety and confusion suffered by P. This would inevitably render P unable to express meaningful wishes and feelings, resulting in P being unable to substantiate her rational for the decisions made. Of course, this would be entirely contrary to s.4(4) of the Mental Capacity Act 2005.

Moving forward, practitioners will have to carefully to consider the venue of choice to interview P, assessing the answers obtained in different settings and analysing if this has any particular impact on P’s wishes and feelings.