ITW v (1) Z (2) M (by her litigation friend the Official Solicitor to the Senior Courts of England and Wales)
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE MUNBY,Mr Justice Munby |
| Judgment Date | 12 October 2009 |
| Neutral Citation | [2009] EWHC 2525 (Fam) |
| Docket Number | Case No: 11297039–03 |
| Court | Family Division |
| Date | 12 October 2009 |
In the Matter of the Mental Capacity Act 2005 and in the Matter of M
[2009] EWHC 2525 (Fam)
Mr Justice Munby
Case No: 11297039–03
IN THE COURT OF PROTECTION
(In Private)
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Howard Smith (instructed by Farrell Matthews & Weir) for the Applicant (M's Deputy)
Miss Barbara Rich (instructed by the Official Solicitor) for the Second Respondent (M)
Miss Charlotte Edge (instructed by Withers LLP) for the Third – Ninth Respondents (the Charities)
The First Respondent (Z) in person
Hearing date: 6 October 2009
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
This judgment was handed down in private but the judge hereby gives leave for it to be published in this anonymised form
This is an application by M's Deputy, ITW, for an order authorising him to execute a statutory will for M.
It is common ground that M, who was born in 1922, lacks testamentary capacity.
The application is supported by the Official Solicitor, who acts as M's litigation friend, and, save only as to one comparatively minor aspect, also by the various charities whose involvement I will explain in due course. The application is opposed by Z who is a former carer for M and was the sole beneficiary under a previous will.
The background
M is a childless widow who from June 2004 until I directed her removal to a care home in October 2008 lived with and was cared for by Z and his family. On 30 September 2004 M executed a will and an enduring power of attorney ( EPA), both in favour of Z.
There is no doubt that, whilst she was living with him and his family, M transferred to Z very significant sums of money, being in substance the whole of her savings and capital with the exception of her house: a total of at least £177,041 between 6 July 2004 and the beginning of January 2006. And the fact, whatever Z may protest, is that despite the strong adverse comments that I felt compelled to express first in a judgment I gave on 12 May 2008 and, again, in a judgment I gave on 19 December 2008, and despite the orders I made on those two occasions, Z has never provided a full and proper accounting of what has become of these monies. What he says was a specific gift of £110,041 in April 2005 was, he says, applied in the purchase in his own name of a property in Cyprus; some £26,000 he says he applied in repairs and improvements to M's house; and some £32,000 he says he applied to M's general maintenance and living costs whilst she was living with him and his family.
By the order I made on 19 December 2008 the Deputy was authorised to commence proceedings in the Chancery Division to recover M's funds from Z. The relevant proceedings have been drafted but have not yet been issued, the Deputy understandably wishing to await the outcome of the present application.
In 2007 the London Borough of Ealing, the local authority which had statutory obligations towards M as a vulnerable adult, commenced proceedings in the Family Division (FD07P00428) in relation to her personal welfare. Z applied to the Court of Protection (11297039) to register the EPA. In the Family Division proceedings the local authority contended that it was not in M's best interests to continue to live with and be cared for by Z and his family. In the Court of Protection proceedings the local authority objected on various grounds to the registration of the EPA.
So far as is important for present purposes I can summarise the subsequent history of the litigation as follows.
The Family Division proceedings: On 12 May 2008 I made an order that it was in M's best interests to continue to live with Z and his family, subject to certain conditions imposed by way of undertakings given to me by Z and subject also to further review. Following that review at a hearing before me in October 2008, M was removed on 24 October 2008 to her present address for assessment. At a further review hearing in December 2008 I declined to direct M's return to Z's care, explaining my reasons in the judgment I gave on 19 December 2008: [2008] EWHC 3425 (Fam). Following a further review hearing before me in February 2009 I made a final order on 13 February 2009 that M remain at her present address and have no further contact with Z or his family.
The Court of Protection proceedings: On 23 April 2007 the local authority abandoned its objections to registration of the EPA on the grounds of incapacity and undue pressure, limiting its objections to the unsuitability of Z as attorney. On 19 March 2008 Z withdrew his application to register the EPA and the Official Solicitor was appointed as interim property and affairs deputy. The local authority's objection on the ground of Z's unsuitability had been supported throughout by the Official Solicitor and was accepted by me in the judgment I gave on 12 May 2008 and which also explained why I was appointing ITW to act as M's property and affairs deputy. The order dated 12 May 2008 appointing ITW contained a number of directions as to the provision of co-operation and information to ITW by Z. Z's default in complying with this order compelled me to make a further, more stringent order, in October 2008 and a yet more stringent order, backed by a penal notice, on 19 December 2008.
In my judgment of 19 December 2008 I voiced strong criticism of Z in relation to both aspects of his dealings with M:
i) M's personal welfare: I found that Z had broken the undertakings he had given me as embodied in the order I made in October 2008. I referred to Z's
"complete inability or unwillingness … to understand the pressing welfare requirements of the … elderly lady for whom he puts himself forward as the most appropriate carer, a complete inability to prioritise her needs before his own wishes and feelings, and in particular a complete inability or unwillingness on his part to appreciate that whether or not he agrees with the order of the court, the court having made that order it was his responsibility as the carer of the patient to make the inevitably unhappy task of complying with the court order as easy from her point of view as lay within his power."
I also referred to his
"striking inability or unwillingness … to understand and promote her welfare, let alone to prioritise her welfare to his own wishes and feelings."
ii) M's financial affairs: I found that Z had "failed completely" to comply with the directions in my order of October 2008, referring in this connection to what I described as his
"total non-compliance with, in circumstances I can only describe as defiance of, the order I made"
and to his
"prevarication, obfuscation and time-wasting delay [in] answering questions which cry out for answer".
This reflected comments I had earlier made in my judgment of 12 May 2008 when, referring to the fact that Z "has had many opportunities to give details, in particular in relation to the £26,000 and the £32,000", I drew attention to his "seeming unwillingness to engage frankly in the process and to make the fullest and frankest disclosure that was open to him."
In summary I concluded in December 2008 that Z
"is someone in whom the court cannot, as present, have that trust and confidence which in this kind of situation the court must have if such a person is to be in a caring relationship with the patient."
I continued:
"Z seeks unsupervised contact. That, in my judgment, is unthinkable in the context of a carer who … has … forfeited the trust and confidence of the court. Should there be supervised contact? The answer to that, in my judgment, is no."
On 19 December 2008, as I have said, I made an order, endorsed with a penal notice, spelling out in great detail and with very considerable precision the disclosure required of Z in relation to his various dealings with M's property. Z asserts that he has complied in full with that order. He has not. Let me give just one striking example. Paragraph 2.7.1 of the order required Z to give a "detailed account" of how certain specified withdrawals from M's bank account were "utilised", including, as specified in paragraphs 2.7.1.5–2.7.1.12, withdrawals on various identified dates between November 2004 and October 2005 of the sums of £2,000, £3,000, £3,000, £200, £3,000, £3,000, £10,000 and £6,000 respectively – a total of some £30,000. Z's response to this, in an affidavit he swore on 16 January 2009, was simply "I cannot remember how these payments were utilised." Given the size of the sums involved this assertion is simply incredible.
The application
In accordance with directions I had included in my order of 19 December 2008, on 27 January 2009 the Deputy applied for an order authorising the making of a statutory will for M under section 18(1)(i) of the Mental Capacity Act 2005. By an order dated 13 February 2009 I directed the making of an interim will which, in the event was executed on 16 February 2009.
I had before me the evidence of Dr PO, a consultant psychiatrist, and of Janet Ilett, the Official Solicitor's representative, both of whom had interviewed M on 12 February 2009 at my direction specifically with a view to ascertaining, in the case of Dr PO, whether M had testamentary capacity and, in the case of Ms Ilett, what M's testamentary wishes and feelings (if any) might be. In a report dated 13 February 2009 Dr PO, giving clear and convincing reasons for having come to this conclusion, said that he believed M to be without testamentary capacity. He described M as:
"someone without a compass...
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