Re P

JurisdictionEngland & Wales
CourtChancery Division
Judgment Date09 February 2009
Neutral Citation[2009] EWHC 163 (Ch)
Docket NumberCase No: 11638908
Date09 February 2009

[2009] EWHC 163 (Ch)


Before: The Honourable Mr. Justice Lewison

Case No: 11638908

In the Matter of P

Mr David Rees (instructed by Farrer & Co.) for the Applicant.

Mr Michael O'Sullivan (instructed by Thomson Snell & Passmore) for P.

Mr Alan Boyle QC and Miss Barbara Rich (instructed by Russell-Cooke Solicitors) for an interested party.

Hearing dates: 27, 28 January 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.


Mr. Justice Lewison:



The entail was once the standard method by which the English aristocracy and landed gentry kept land in the family, as any reader of Jane Austen will know well. In Pride and Prejudice one reason for the desperate attempt to marry off the Bennet girls was that Mr Collins would inherit the estate under an entail. Even then the entail was not widely understood:

“Jane and Elizabeth tried to explain to her the nature of an entail. They had often attempted to do it before, but it was a subject on which Mrs. Bennet was beyond the reach of reason.”


Unfortunately, as this history of this case reveals, an entail remains a subject on which some people are beyond the reach of reason.


The essence of an entail is that it creates an estate in land (called a “fee tail” or “entail”) which lasts for so long as the original grantee or any of his lineal descendants are alive. The original grantee takes a life interest and his descendants also each take successive life interests in land. The instrument creating the entail sometimes limited the gender of the grantee's descendants entitled to a life interest (usually to males). The person entitled to the life interest is called the tenant in tail in possession, and the next person in line is called the tenant in remainder (or the remainderman). The common law was hostile to what were effectively inalienable interests in land and by the end of the fifteenth century allowed the legal process to be (ab)used in a collusive action (called a recovery) and a collusive compromise (called a fine) which cumulatively had the effect of barring the entail. Once the entail was barred it was converted into a fee simple. These judge made rules were confirmed in substance but simplified by Parliament. Under the present law a tenant in tail in possession may bar the entail by a disentailing assurance (which must be made by deed) made during his lifetime under the Fines and Recoveries Act 1833; or by will under section 176 of the Law of Property Act 1925. Thus all it takes to bar an entail is the execution of a simple deed by the tenant in tail in possession, or the inclusion of a suitable clause in his will. Accordingly the position of the remainderman is very precarious.


The present case concerns an entailed estate. The current tenant in tail in possession lacks mental capacity. The court is asked to make a will on his behalf. The court is also asked to appoint a deputy and to determine what powers the deputy will have. I am told that this is one of the first cases about dealings with property under the Mental Capacity Act 2005, which came into force on 1 October 2007, to have come before a High Court judge (although I am of course sitting as a judge of the Court of Protection).

The facts


[The judge stated the facts prior to 2008 and continued].


In February 2008, A, who is P's niece, applied to the courts of California to be appointed as Conservator of P's person and property (effectively equivalent to a welfare and property and affairs deputyship in England). The Californian Court has in fact appointed the Bank of America as Conservator of P's person and property. The Bank now applies to the Court of Protection for the making of a will on behalf of P.


Mr Rees appeared on behalf of the Conservator; Mr O'Sullivan appeared on behalf of P's litigation friend; and Mr Boyle QC and Miss Rich appeared on behalf of an interested party. I am indebted to all of them for their careful arguments; but I would like to thank Miss Rich especially for her erudite note on the former jurisdiction of the Court of Protection; and for the very detailed narrative, which I have shamelessly plundered.

P's present condition


[The judge considered P's present condition and continued]. There is no doubt that he now lacks mental capacity.

The court's former jurisdiction


The case began on the footing that the principles laid down by the Court of Protection in exercise of its previous jurisdiction to deal with the property of a patient continue to apply to the exercise of powers under the Mental Capacity Act 2005. To see whether that is so, I should examine those principles and their rationale.

Before 1959


In Re L (WJG) [1966] Ch 135 Cross J traced the history of the court's jurisdiction before the passing of the Mental Health Act 1959. Before 1926 the judges who exercised the Lord Chancellor's jurisdiction in lunacy had no statutory power to direct any settlement (even a revocable settlement) of any part of the patient's property. They were accustomed, in exercising the prerogative to manage the patient's affairs, to direct voluntary payments out of his income which they considered that he would have made if he had been sane, but in those days the court would never direct a payment simply because it was the sort of payment which the patient might well have made but only if it was a payment which he would undoubtedly have made unless he was a very oddly constituted person. The typical examples were subscriptions to local charities which any sane landowner would make as a matter of course and the expenses of educating the heir to the property in a suitable manner. Section 171 of the Law of Property Act 1925 conferred on the court power to direct settlements of the patient's property; but what Parliament had primarily in mind in conferring the power to direct settlements of the patient's property, was not the execution of irrevocable settlements divesting him of any interest in the property settled, but the execution of revocable settlements, with reservation of a life interest in order to fill the gap caused by the inability of the patient to make a will. If he had made a will, the legatees under it might have died, and, if he had made no will, those who were presumptive next-of-kin when he lost his reason might themselves have died. This last consideration had become particularly important owing to the changes in the law of intestacy made by the 1925 legislation which gave intestates' estates to the Crown as bona vacantia if there were no surviving relatives within the degrees of descendants of the same grandparents.


The statutory powers which the court exercised were limited powers to deal with a patient's property. These powers were replaced by the Mental Health Act 1959 and after that by the Mental Health Act 1983. These powers did not include powers to make decisions about a person's personal welfare: In re F (Mental Patient: Sterilisation) [1990] 2 AC 1.

The Mental Health Act 1959


Section 102 (1) of the Mental Health Act 1959 provided:

“The judge may, with respect to the property and affairs of a patient, do or secure the doing of all such things as appear necessary or expedient—(a) for the maintenance or other benefit of the patient, (b) for the maintenance or other benefit of members of the patient's family, (c) for making provision for other persons or purposes for whom or which the patient might be expected to provide it he were not mentally disordered, or (d) otherwise for administering the patient's affairs.”


Section 103 empowered the court to direct the making of a settlement; and the Administration of Justice Act 1969 introduced a power to direct the making of a will. In Re L (WJG) Cross J was considering the power to direct the making of a settlement. He held that the particular provisions under consideration were not for the benefit of the patient or his family. Thus the only power he had was the power given by section 102 (1) (c). It follows that the question he was considering was what “the patient might be expected to provide if he were not mentally disordered”. Accordingly the Act itself required the court to make the counter-factual assumption that the patient was not mentally disordered, and then to ask itself what, on that hypothesis, the patient might be expected to do. Cross J made it clear that the conclusions that he reached were conclusions reached as a matter of construction of section 102 (1) (c). In essence, the question was: given the counter-factual assumption that the Act required to be made, were there any further assumptions that were necessarily inherent in that assumption? Cross J held (in effect) that there were not and that apart from assuming that the patient was not mentally disordered, he had to be taken as he was. In that case the patient was friendless and cared for at the expense of the state with no opportunity to spend his money, and no prospect of marrying and having a family. Cross J said:

“It seems to me, therefore, that I must assume that the patient becomes a sane man for a sufficient time to review the situation but knows that after a brief interval of sanity he will once more be as he was before.”


The phrase “be as he was before” in the context of that case meant that he would continue to have the same material needs and the same lack of human intercourse as he in fact had in his mentally disordered state.


But the important point for present purposes is that the statutory direction to the court was to direct the making of a settlement that the patient himself (if not mentally disordered) would himself have...

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1 firm's commentaries
  • The Court Of Protection - Recent Cases And Comments On Procedure (Part 1)
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    • Mondaq United Kingdom
    • 1 July 2010 is therefore likely that practice will continue to be varied across the country. The role of the individual's own wishes In Re P [2009] EWHC 163 (Ch), the court noted that deciding what was in a person's best interests was not the same as enquiring what the person would have decided if h......
2 books & journal articles
  • The Rise of Statutory Wills and the Limits of Best Interests Decision‐Making in Inheritance
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    • The Modern Law Review Nbr. 78-6, November 2015
    • 1 November 2015
    ...J. Mason, J. Masson and L. Wallis, Wills, Inheritance, andFamilies (Oxford: Clarendon Press, 1996) 164.57 In Re P (Statutory Will) [2009] EWHC 163 (Ch).58 Re D (J) n 55 above, 243–244.59 ibid, 243.60 ibid, 244.61 ibid.62 In Re L (WJG) [1966] Ch 135, 142 (Cross J).Rosie Harding© 2015 The Aut......
  • The Place of Wishes and Feelings in Best Interests Decisions: Wye Valley NHS Trust v Mr B
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    • The Modern Law Review Nbr. 79-6, November 2016
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    ...of making a decision, their ownpreferred outcome would be determinative within a range of ‘reasonable’ or99 ibid at [57].100 Re P [2009] 2 All ER 1198.101 ITW vZ & Ors n 80 above at [28].102 See, for example, Re N [2015] EWCOP 76 (Fam); Re CD [2015] EWCOP 74; Sheff‌ield TeachingHospital......

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