Re B (A Patient)(Court of Protection: Statutory Will); G v Official Solicitor

JurisdictionEngland & Wales
JudgeLord Justice Mummery,Lady Justice Arden,Lord Justice Moore-Bick
Judgment Date23 June 2006
Neutral Citation[2006] EWCA Civ 816
CourtCourt of Appeal (Civil Division)
Docket NumberCase No: A3/2005/0467
Date23 June 2006

[2006] EWCA Civ 816

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE NOMINATED JUDGE UNDER PART VII MENTAL

HEALTH ACT 1983

SIR FRANCIS FERRIS

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Mummery

Lady Justice Arden and

Lord Justice Moore-Bick

Case No: A3/2005/0467

10434903

Between:
G
Appellant
and
Official Solicitor
Respondent

G the appellant acting in person

MR DAVID REES (instructed by Official Solicitor) for the Respondent

Lord Justice Mummery

Introduction

1

This is a second appeal and is from the nominated judge (Sir Francis Ferris) under Part VII of the Mental Health Act 1983. He dismissed an appeal against the decision of the Master in the Court of Protection authorising the receiver of a patient to make a statutory will on her behalf.

2

The Court of Appeal (Sir Mark Potter P and Sir Peter Gibson) held on 1 November 2005 that no permission to appeal was required under the CPR. There is a statutory right of appeal from the nominated judge to the Court of Appeal. The decision is reported in [2006] 1 WLR 278. It sets out most of what needs to be known about the general background to this appeal.

Application for statutory will

3

On 19 March 2004 the patient's then receiver applied to the Court of Protection to make a statutory will. The patient, anonymised in this judgment as MB, is 74 years old. She lacks testamentary capacity as a result of senile dementia and Alzheimer's disease. She needs a great deal of care and attention, which is provided by one of her sons, whom I will call G. He lives with her and he has the support of professional carers. He acts in person in these proceedings. The Official Solicitor represents the interests of the patient on this appeal.

4

Long before the onset of her illness MB had made a will on 20 October 1981. She appointed G as sole executor and divided her estate equally between her 3 children G, another son, whom I will call A, and a daughter, whom I will call S. The estate is substantial. It is estimated to run into several million pounds. There are properties here and abroad, ordinary investments and a 10% shareholding in a company of which S's husband is a director. Disputes have arisen about a rights issue in the company, which the Official Solicitor is investigating. There have been problems with sales of some of the patient's properties.

5

The patient's first receiver was appointed on 15 April 2003. He was a solicitor. The appointment of a receiver was opposed by G in principle. He maintained that his mother would not wish to incur the costs of having a professional receiver to manage her affairs. The relations between G and the receiver's firm have not been good.

6

There is also disharmony between MB's 3 children, which has created problems in the managements of her affairs and would also create problems in the administration of the patent's estate. Matters have not been improved by G's upset at the contents of a report of 12 July 2004 made by the Lord Chancellor's general visitor about the care of the patient. G alleges that the report contains defamatory statements.

7

Against this background Assistant Master Prime at the Court of Protection made a statutory will for the patient on 4 August 2004. There had been several adjournments of the application at G's request. He did not attend the hearing, having been refused an adjournment sought by him on medical grounds. Representations were made by the receiver and by the Official Solicitor representing the interests of MB. The Master concluded that it was in the interests of the patient for a new will to be made. He decided that the circumstances called for a professional executor. He held that there was no reason for not appointing the receiver, who was in possession of relevant financial information, as executor of the will.

8

The dispositive provisions of MB's original will remained as before. The receiver's firm (limited to 2 partners) was appointed executors in G's place. A hotch pot clause was introduced and so were STEP (Society of Trust and Estate Practitioners) administrative provisions.

Appeal to nominated judge

9

G appealed to the nominated judge. G objected to the removal from MB's will of his appointment as sole executor and to the appointment of partners in the receiver's firm in his place. He wished to be re-instated as sole executor. He also wanted the receiver removed. The receiver himself wanted to resign, but proposed that another partner in his firm be appointed in his place.

10

On 21 February 2005 Sir Francis Ferris, sitting as a nominated judge under Part VII of the Mental Health Act 1983, dismissed G's appeal after a re-hearing during which he heard submissions from G in person, from counsel for the receiver and from counsel for the Official Solicitor. He held that

"19. ….what is abundantly clear is that there is and has been for very many years, a state of conflict between the patient's three children and that state of conflict looks likely to continue indefinitely.

20. The court is not in a position to say who is right and who is wrong in that conflict. I approach the matter simply on the footing that the conflict exists and unless resolved will inevitably produce controversy and difficulty in the administration of the patient's estate when she dies, whoever is responsible for that administration.

21. It does appear to me, however, that the administration has the best chance of proceeding efficiently if it is in the hands...

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    ...J, such well-known authorities as In re L (WJG) [1966] Ch 135, In re D (J) [1982] Ch 237, In re C (A Patient) [1992] 1 FLR 51 and G v Official Solicitor [2006] EWCA Civ 816, [2006] WTLR 1201, are best consigned to history. The starting point now must be what Lewison J aptly described (para......
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    ...of 2006 In the Matter of G (tj) Miss Barbara Rich (instructed by Mullis & Peake LLP) for the Deputy Mr David Rees (instructed by the Official Solicitor) for the Official Solicitor as litigation friend for Mr Michael King (instructed by Harcus Sinclair) for C Royal Courts of Justice Strand, ......
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