Re D (Statutory Will) [Court of Protection: Manchester]

JurisdictionEngland & Wales
CourtChancery Division
JudgeHis Honour Judge Hodge QC
Judgment Date16 August 2010
Neutral Citation[2010] EWHC 2159 (Ch)
Docket NumberCase No: 1152869101
Date16 August 2010

[2010] EWHC 2159 (Ch)

IN THE COURT OF PROTECTION (In Private)

Manchester Civil Justice Centre

1 Bridge Street West

Manchester M60 9DJ

Before: His Honour Judge Hodge QC

Case No: 1152869101

Between
In the Matter of Re D (statutory Will)
Vac
Applicant
and
(1) JAD (a protected person, by her litigation friend, the Official Solicitor)
(2) FKD
(3) LJS
Respondents

The Court received written submissions from Mr Nigel Ginniff, instructed by the Lee Rigby Partnership, Leyland, on behalf of the applicant; and a Position Statement from Mr David Rees, instructed by the Official Solicitor, on behalf of Mrs D.

Hearing date: Monday 16 August 2010

His Honour Judge Hodge QC

A Specialist Chancery Circuit Judge Nominated to Sit as a Judge of the Court of Protection

The Hearing Proceeded in Private as a Hearing on Paper Only Without Any of the Parties Attending.

Pursuant to Rule 91 (2) (b) of the Court of Protection Rules 2007 I authorise the publication of the text of this anonymised judgment, which is an authoritative record of the reasons for my decision to authorise the property and affairs deputy of the protected person to execute a statutory will in her name and on her behalf in the terms of the approved draft.

His Honour Judge Hodge QC

His Honour Judge Hodge QC:

Introduction

1

This is the hearing of an unopposed application under the Mental Capacity Act 2005 for an order authorising the deputy of a protected person, Mrs D, to execute a statutory will in her name and on her behalf. By the consent of the parties, the hearing has proceeded in private as a hearing on paper only without any of the parties attending. Mrs D is represented in the proceedings by the Official Solicitor. I have had the benefit of a position statement prepared for the Pre-Trial Review by counsel instructed by the Official Solicitor, Mr David Rees; and of written submissions prepared for this hearing by counsel instructed on behalf of the applicant, Mr Nigel Ginniff. Pursuant to rule 91 (2) (b) of the Court of Protection Rules, I authorise the publication of the text of this anonymised judgment.

The background

2

Mrs D is a widow who was born on 26 June 1922. The applicant, Mrs C, who was born on 18 June 1943, is Mrs D's elder daughter. The respondents to this application are Mrs D and her remaining two children, Mr D, born on 12 April 1945, and Mrs S, born on 12 April 1947 (who are Mrs C's half-brother and half-sister). Mrs D suffered a stroke on 26 December 2003 which, according to Mrs C, left her unable to communicate coherently. Mrs C states that she had entertained concerns about her mother's mental state as early as 2002. The affairs of Mrs D first came before the Court of Protection in 2007 when, on Mrs C's application, an Enduring Power of Attorney in favour of Mr D, purportedly signed by Mrs D on 26 January 2003 and registered on 27 April 2007, was revoked with immediate effect. A letter dated 26 November 2007 from the Office of the Public Guardian, which enclosed the relevant Court Order, explained that “the Court has stated that the EPA is clearly a forgery – it was purportedly signed on 26 January 2003 but the form is marked Crown Copyright 2005, printed September 2005.” Early in 2008, Mrs A, a partner in a firm of solicitors in Fleetwood, was appointed to act as Mrs D's property and affairs deputy; and by an order dated 14 January 2008, Mr D and Mrs S were ordered to deliver to Mrs A all financial documentation relation to Mrs D; and they were forbidden from acting in respect of her affairs. At a hearing before DJ Ashton on 1 May 2008, Mr D and Mrs S both accepted that sums of money and investments transferred to them from Mrs D were held on her behalf and should now be transferred back to the deputy, subject to the deduction of any expenditure incurred on their mother's behalf. A witness statement from the deputy dated 9 July 2010 records that Mr D has repaid £46,000 (retaining in excess of £10,000 for expenses incurred in looking after his mother at his home in Salford for some 18 months); and Mrs S has accounted to the deputy for investments belonging to her mother valued at some £85,000. It would appear that there is a not insignificant part of Mrs D's estate for which a full account has not yet been provided.

3

On 25 September 1995 Mrs D had duly executed a Will, drafted by a firm of solicitors in Fleetwood and witnessed by 2 clerks employed by that firm. She appointed Mr P and Mr D to be her executors and trustees. She left a pecuniary legacy of £1,000 (free of inheritance tax) to each of her grandchildren living at the date of her death. (At that time, Mrs C had 5 children, Mr D had 5 children, and Mrs S had one adult son.) Mrs D made specific gifts (free of inheritance tax) of items of her jewellery to each of her three children. She left the residue of her estate to her trustees upon the usual trusts for sale and conversion; and she directed that the sale proceeds should be held upon trust for her three children in equal shares absolutely, with provision for the adult children of a deceased child to take, if more than one equally, the share of their deceased parent.

4

On 7 July 2004, Mrs D made a further Will, drafted by the same firm of solicitors in Fleetwood and witnessed by a clerk and a legal executive employed by that firm. Again she appointed Mr P and Mr D to be her executors and trustees; but this time she left her entire estate to her younger daughter, Mrs S, absolutely (with provision for her adult children to take, if more than one equally, should Mrs S predecease her). A contemporaneous letter of wishes, addressed to Mrs D's executors and trustees, explained that Mrs D had not wished to make any provision for her son, Mr D, as in her opinion “he already has sufficient assets of his own”.

5

At a hearing before DJ Ashton (sitting as a nominated judge of the Court of Protection) on 1 May 2008, attended by Mrs D's three children, the deputy raised the possibility of the need for a statutory will. DJ Ashton ordered that a copy of the solicitors’ file relating to the making of the 2004 Will should be sent to him. This was done; and, having considered the papers, on 8 July 2008 (and without a hearing) DJ Ashton ordered that Mrs D's deputy was not to apply for a statutory will. In a note accompanying his decision, DJ Ashton explained that: “The interview notes merely recorded the testamentary intentions and did not state who gave the instructions or who was present at the interview…Although the file note is inadequate and does not reveal any consideration of undue influence or testamentary capacity, the 2004 Will was made under the guidance and supervision of the same reputable local firm of solicitors who made the 1995 Will. It is only the role of the Court of Protection to authorise a statutory will when there has been a material change of circumstances or there is a vacuum. It is not the role of this Court to adjudicate upon disputes as to the validity of Wills. There is no basis for requiring the finance Deputy to apply for a statutory will on the evidence presently available.”

The application

6

In May 2009 Mrs C applied to the Court of Protection for an order that the deputy be authorised to execute a statutory will for Mrs D. By this time, the Fleetwood solicitors who had prepared the two earlier wills had discovered a further purported will of Mrs D dated 10 October 2006. This document would appear to be a home-made will, drafted without the involvement of solicitors. Although it employs some legal terminology, its use is not always entirely appropriate; and its drafting would be critically received in Chancery chambers in Lincoln's Inn. The document purported to appoint Mr D to be the sole executor and trustee, and to give half of Mrs D's estate to each of Mr D and Mrs S (with no survivorship provisions). In her witness statement dated 5 May 2009 in support of her application, Mrs C asked the Court to order the execution of a statutory will in the light both of her mother's asserted incapacity to make a valid will in 2004 and 2006 and “of the material change of circumstances that occurred by reason of the actions that my sister and brother have taken since my mother's stroke and the influence they have sought to impose for their own benefit instead of for the care of my mother”.

7

That application came before DJ Ashton on paper on 1 December 2009 when he refused permission to apply for a statutory will. In the accompanying notes of his decision, he recorded that it appeared likely that Mrs D would have lacked testamentary capacity in 2006, and that questions might arise as to whether there had been undue influence. However, he reiterated his earlier view that it was “only the role of the Court of Protection to authorise a statutory will when there has been a material change of circumstance which make existing testamentary provision inadequate or there is a vacuum. It is not the role of this Court to adjudicate upon disputes as to the validity of Wills during the lifetime of the testator. If a Will was validly made the Court of Protection should not, [absent] a material change of circumstances, interfere with it because it represents the wishes of the testator and these should be respected. To consider authorising a statutory will in this case would be to become embroiled in a family dispute as to which sibling should receive mother's money. That would not be appropriate.”

8

Mrs C requested a reconsideration of DJ Ashton's order. At a hearing in Kendal on 25 January 2010, attended by Mrs C's counsel, and made without notice having been given to any other party, DJ Ashton set aside his order of 1 December 2009. He permitted the application to proceed as an application for a statutory will, rather than for a direction that the deputy should apply for one. In the recitals to his order, DJ Ashton recorded that: (1) The Court was...

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