K v LM

Summary

In this case P was seriously assaulted by her birth mother when very young. She eventually received a large CICA award. Her care needs were met by the income from that award and NHS continuing health care payments. P's remaining capital exceeded £2m and was not being eroded. P's adoptive parents, it seems, were much involved in P's care. Her other family was a sibling who had 2 daughters.

P's deputy made an application for a statutory will proposing 25% each to her parents, 25% to her sibling and 25% to the 2 children of her sibling with an accrual clause to prevent anyone else benefitting.

The Official Solicitor was appointed P's litigation friend. P's family did not attend the hearing but made written representations.

Everyone agreed that there should be a statutory will. The issue was as regards any charitable gift.

The Official Solicitor proposed 20% to charity on the grounds that the funds were from the community and in those circumstances P would have wanted some part to go back to the community.

P's family accepted that a charitable gift was appropriate but suggested 5%. P's deputy, the applicant, supported that, pointing out that IHT would return a substantial amount to the community anyway.

In an email, P's adoptive mother stated that she had felt "massively insulted". P's wishes as to charitable giving were impossible to ascertain, and her adoptive mother declined to suggest any charities that P might wish to name, commenting in the same email that "the only way of getting this kind of information from her will be to plant the idea in her mind – thus it will not be 'her' choice/wishes."

In the result, the District Judge decided that the Official Solicitor's approach was right, directing a gift of 20% to charities principally a charity of the local NHS trust.

Comment

There is little in the judgment (which was published at the request of the Official Solicitor) that tells us why the judge decided that 20% was more in P's best interests than 5%. A Court of Protection Visitor had tried to ascertain P's views but with limited success. The judge clearly had section 4(7)(b) MCA in mind (requiring the court to take account of the views of those engaged in caring for P). The judge must have had in mind the fact that one of those carers had felt "massively insulted" but still found it in P's best interest to prefer the views of the Official Solicitor rather than that carer.

We must confess to a degree of unease as to why such an outcome could be said to be in P's best interests. For those who want to reflect further upon when and whether it is really right to apply a best interests criterion in the making of statutory will applications where (as here) it appears to be impossible to discern the person's wishes and feelings, we commend the article by Rosie Harding entitled "The Rise of Statutory Wills and the Limits of Best Interests Decision-Making in Inheritance" (2015) Modern Law Review 78: 945–970.