FL v MJL (by his Litigation Friend, the Official Solicitor)
| Jurisdiction | England & Wales |
| Judge | Sarah Ellington |
| Judgment Date | 19 June 2019 |
| Neutral Citation | [2019] EWCOP 31 |
| Court | Court of Protection |
| Docket Number | Case No.: 1156678 |
| Date | 19 June 2019 |
[2019] EWCOP 31
District Judge Sarah Ellington
Case No.: 1156678
David Rees QC (instructed by Withers LLP) for the Applicant
William East (instructed by the Official Solicitor) for the First Respondent
Hearing date: 19 June 2019
The hearing was conducted in public subject to a transparency order made on 9 April 2019. The judgment was handed down to the parties by e-mail on 10 July 2019. It consists of 16 pages and has been signed and dated by the judge. The numbers in brackets refer to pages in the hearing bundle.
The issue for determination
This is an application for
(i) ratification of gifts previously made on behalf of MJL; and
(ii) authority to make prospective gifts on behalf of MJL, pursuant to section 18 (1) (b) of the Mental Capacity Act 2005 (‘MCA 2005’).
FL the brother of MJL was appointed as his sole deputy for property and affairs by orders dated 21 July 2008 and 23 January 2012.
The Official Solicitor is MJL's Litigation Friend. The parties have not reached an agreement between themselves.
Documents considered
I have read and considered carefully the following documents, which were helpfully contained in a hearing bundle:
For the Applicant:
The Applicant relies on the following witness statements, which have not been confirmed in sworn evidence, but each statement contains a Statement of Truth. The Official Solicitor for the Respondent has decided not to cross examine the witnesses and accepts the beliefs expressed are held by the witnesses, but not that they should lead the court to make the order sought by the Applicant. There is no contrary evidence to the facts asserted in the witness statements.
FL dated 7 May 2018 and 29 March 2019
AR dated 14 May 2019
RL dated 17 May 2019
BL dated 15 May 2019
Position statement by Mr David Rees QC dated 17 June 2019
For MJL:
Official Solicitor submissions in a previous statutory will application by letter dated 11 December 2009
Position statement by Mr William East dated 14 June 2019
The Proceedings
The current application was received by the court on 10 May 2018. It was supported by a witness statement from FL dated 7 May 2018. A statutory will was approved by this court previously by order of 5 January 2010. MJL was intestate prior to that.
In the current application, the Official Solicitor was invited to be appointed as Litigation Friend for MJL, which invitation was accepted. The parties then explored whether they could reach agreement in the application pursuant to directions orders dated 12 June 2018, 5 September 2018, 19 October 2018, 31 October 2018, 23 November 2018, 30 January 2019 and 12 March 2019. The order of 12 March 2019 was my first involvement in the case and, given the time which had elapsed since the application was made, it included directions for the matter to be listed for a hearing of directions on 13 May 2019. In the event, that hearing was vacated and the matter was listed for final hearing on 19 June 2019.
At the hearing I had the benefit of oral submissions from Mr. Rees QC and Mr East. Their submissions and position statements have been of considerable assistance.
Factual Background
MJL is in his sixties. He is unmarried and has no children. His four siblings are the Applicant, FL, RL, BL and AR, each of whom have children of their own. MJL's parents have died.
MJL fell into a persistent vegetative state from which he has not recovered following a cardiac arrest in November 2007 and now lives in a hospital. The tragedy his family has suffered needs to be recognised. His siblings each visit once or twice a year. Each sibling is acknowledged to be wealthy, which appears to be principally as a result of money passed to them by one or both parents. They do not need to work but some of them do.
MJL was 54 years old when he lost capacity.
MJL has the benefit of NHS funding. As noted, the Applicant was appointed as MJL's sole Deputy for Property and Affairs by orders dated 21 July 2008 and 23 January 2012.
MJL has an estate valued in excess of £17 million
Capacity: The Applicant has filed an assessment of capacity on form COP3 dated 17 January 2018 completed by an occupational therapist and clinical lead for cognitive assessment and capacity assessments at the hospital where MJL lives. It confirms that MJL suffered a hypoxic event in 2007 which resulted in a disorder of consciousness, which remains to this day. As a result, the assessment advises that:
“[MJL] is unable to communicate his needs or wants in any way. He requires all his needs to be anticipated and provided for in his best interests. All his responses remain at reflex level with no evidence of a volitional response”
The assessment holds out no prospect of MJL ever making a recovery from his injuries. It is clear (and is accepted by the parties) that MJL lacks capacity within the meaning of section 2 of the Mental Capacity Act 2005 to make the gifts proposed.
Life expectancy: The Applicant has also provided a letter dated 04 April 2018 from a consultant in Rehabilitation Medicine, who advises:
‘It is not possible to give any accurate estimation of life expectancy. [MJL] has been medically stable over the last year. In his care plan we have it written that should he have a cardiac arrest he is not to be resuscitated. Nor is he to have further antibiotic intervention or transfer to hospital should he have infection/sepsis. He would receive palliative care in those circumstances. I would expect he would not have a normal life expectancy, but that he could go on living for some more years yet.’
Assets, income and expenditure. The position statements of both parties draw upon the Deputyship accounts of the year ending 20 July 2017. The figures will have changed but neither party submits that there is a material change. The estate at that time was put as approximately £17,342,061, which comprised the following:
Pension scheme: £66,000
Debtors: £53,215
ISA account: £167,595
Cash at bank: £173,036
Cash with investment manager: £59,099
Investment portfolio: £16,823,116.
As the Applicant submits, MJL's annual income is £123,219 and his annual expenditure is £16,079, resulting in an annual surplus of £107,140. The Applicant states that the private cost of MJL's care, as currently provided by NHS Continuing Healthcare, would be in the region of £175,000 [page F98, paragraph 29].
The parties also relied on the financial position when the statutory will was authorised by the court on 5 January 2010. The Official Solicitor's submissions by letter dated 11 December 2009 was filed shortly before the hearing. At that time MJL was described as having assets:
‘valued at in the region of £10.23 million, comprising a number of bank accounts, investments, and life assurance policies. He is also entitled to a substantial inheritance (in excess of £1million) from the estate of his late father [name provided] who died in 2001.
As regards net annual income, this is put at approximately £74,000 per annum comprising occupational pension and the income earned from [MJL]'s investments. Annual expenditure is put at £26,000. There is therefore a substantial surplus of approximately £48,00 per year.’
It was confirmed at the hearing that the inheritance referred to was in fact £2.78 million [page H254]
Testamentary position: As mentioned, the court has previously authorised the execution of a statutory will on behalf of MJL, which is dated 05 January 2010. The parties agree that this provides that the Applicant and RL are appointed as executors and the estate is divided as follows:
60% to the Siblings in equal shares (with a gift over to their issue in substitution);
9.75% to Amnesty International;
9.75% to Oxfam;
9.75% to The Medical Foundation for the Care of Victims;
9.75% to War on Want;
1% to the League of Friends of the hospital where MJL lives.
The only papers which I have relating to the statutory will application are the Official Solicitor's submissions by letter dated 11 December 2009.
MJL's lifetime gifting: When MJL had capacity, he set up standing orders to three political organisations, The Labour Party, The Red Banner and Charter 88, none of which are registered charities. Gifts to these organisations since 2009 now total £2,016, £321 and £525 respectively. In the current application the Applicant seeks ratification of the gifts made.
In 1988, MJL gave £20,000 or £25,000 to a charitable organisation set up by the family which is now named in memory of both MJL's parents [page H254]. Whether it was £20,000 or £25,000 is not material, given the size of MJL's estate at the time.
RL gives evidence that MJL felt passionate about giving money to charity [page F195, paragraph 12]. MJL and RL were both trustees of a charitable foundation [x and y Memorial Foundation] set up after their mother's death, to which their father's name was added on his death. This appears to be the same charitable foundation to which MJL gave in 1988. RL recalls a conversation in 2004 with MJL about this as follows:
‘In 2004, [MJL] approached me about making a distribution from the foundation to four charities totalling £80,000 (i.e. £20,000 to each charity). The charities were Amnesty International Charity Limited, Oxfam, Medical Foundation for the Care of Victims of Torture and War on Want. [MJL] was unusually prickly about this – I...
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