Re Gladys Meek; Jones v Parkin and ors [2014] EWCOP 1 (HHJ Hodge QC)

This case is the follow on from proceedings before Senior Judge Lush in April 2013, reported as Re GM, MJ & JM v The Public Guardian  [2013]  EWHC 2966;  [2013] COPLR 290. That  well known case concerned unauthorised gifts by deputies and resulted in the deputies being stripped of their deputyship and ordered to repay to P’s estate sums in excess of £200,000. This subsequent case was brought by the new deputy and heard by His Honour Judge Hodge QC, and concerned the making of a statutory will on P’s behalf, an application for an order calling in the former deputies’ security bond and the question of whether or not the conduct of the former deputies should be referred to the police.

So far as the statutory will is concerned, the new deputy proposed that P’s estate should be left equally between two charities. The other parties to the application were relatives who would otherwise be entitled under an intestacy, the former deputies and the Official Solicitor as litigation friend. Differing views were put forward as to the appropriate destination of P’s estate. The value of P’s estate (not counting the possible recovery from the security bond, which was in the sum of £275,000) was just over £114,000. Something over £92,000 had been incurred by all parties in respect of the costs of the applications before the court.

So far as the court’s approach to the making of a statutory will is concerned, the court first referred to the relevant authorities, in particular the summary of the authorities in NT v FS [2013] EWHC 684 (COP); [2013] COPLR 313 at paragraph 8 of the judgment of His Honour Judge Behrens, and to the observations of Baroness Hale of Richmond in the Supreme Court in the medical treatment case Aintree University Hospitals NHS Trust v James [2013] UKSC 67; [2013] COPLR 492 at paragraph 45 which was cited as authority for the proposition that where, in section 4 Mental Capacity Act 2005, the statute refers to wishes and feelings and beliefs and values that are to be considered, those are of the incapacitous person himself and not those of a reasonable person in that person’s position.

Referring to the potentially differing views that have been expressed on the relevance of the weight to be attached to P having “done the right thing” by his will and being remembered for that after his death, at paragraph 34 the judge said that the “right thing” is to be judged by reference to the standards of the incapacitous person himself and not by what the reasonable incapacitous person might have thought. He also, at paragraph 35, endorsed the “balance sheet” approach to the making of statutory wills.

So far as the actual disposition is concerned, the court followed the submissions of the Official Solicitor, excluding from the will those who would have benefitted under an intestacy principally because P’s estate had been very substantially augmented by the unexpected death of P’s sole statutory heir, namely her daughter. Her daughter had died at a time when P lacked capacity to make a will. Further, P had fallen out with one of the intestacy beneficiaries and had had no contact for many years with the other.

The court also had little difficulty in holding that the former deputies should not benefit under the statutory will because of their behaviour. In the result, the court ordered a quarter of P’s estate to go to P’s daughter’s god-daughter with the remainder to charities (along the lines suggested by the Official Solicitor).

So far as a security bond is concerned, the court had little hesitation in ordering it to be called in and at paragraph 93 held that in cases of default by a deputy, the security bond should be called in “almost as a matter of course”.

Finally, the court held that it was not in P’s best interests for the deputies to be reported to the Police.

That judgment was given on 10th April 2014 and the statutory will was subsequently executed. On 21st April 2014, after the execution of the statutory will, P died and in a post-script to the judgment, the judge ordered that the judgment be published in an un-anonymised form. The judgment does not record what happened in respect of the costs of the application. No doubt at least some part fell on P’s estate.

Comment

The application of the best interests test is not easy in the case of statutory wills. That is because at the time when the will comes into effect, P is dead and no longer has any interest in the disposition of his estate. P, of course, has such an interest during his lifetime, hence the reference in the cases to P’s best interests being served by his “doing the right thing” in his will as this is something that P would have wanted to do had he had capacity.

In this case, it was possible for the court to conjecture on what P might have wanted to do in the changed circumstances after she inherited a large sum from her daughter’s estate when P lacked capacity. Usefully, the court adopts what Baroness Hale said in the Aintree case about the need to look to what P’s wishes and beliefs would have been on a subjective basis, not an objective basis of what a reasonable person might wish and believe.

The way in which that can be applied in a case where P has always lacked capacity, however, is more problematic. That would arise in cases where, for example, P has lacked capacity from birth because of, say, birth injuries and is the recipient of a large personal injury award.

Practitioners should also note that contested statutory will applications are costly and, where the estate is likely to be relatively modest, may well not be worth pursuing.