NT v FS & Ors
Summary: This was an application by NT ('the Deputy') for authority to execute a statutory will on behalf of F who was now 74 with Alzheimer's dementia. A former professional rugby league player in Leeds, F then qualified as an electrician before becoming a property developed. He was a secretive man who kept a compartmentalised life. The estimated worth of his estate was up to £3.1 million, although this would depend on the sellable value of his real property and tax deductions. With no recall of his assets or of his immediate and extended family, it was not in dispute that F lacked the relevant capacity and that it was in his best interests for the court to execute a statutory will for him.
Reviewing the relevant provisions of the MCA, the Judge noted that the powers conferred by s 16 included the execution for P of a will: s 18(1)(i). The decision to authorise its execution was a decision which must be made by the court itself, and cannot be entrusted to a deputy: s 20(3)(b). The will may make any provision (whether by disposing of property or exercising a power or otherwise) which could be made by a will executed by P if he had capacity to make it: Sched 2 para 2.
At paragraph 8 the Judge summarised the guidance from the main cases which, to paraphrase, consisted of the following:
1. The overarching principle is that any decision made on behalf of P must be in P's best interests which is an objective, not a substituted judgment, test. 2. The structured decision making process laid down by the MCA must be followed, considering all relevant circumstances, in particular the matters in ss 4(6)-(7). 3. There is no hierarchy between the various best interests factors and their weight will differ depending on the individual circumstances. One or more features may be of 'magnetic importance' in influencing or even determining the outcome. 4. There was some disagreement in the authorities as to whether there was a presumption in favour of implementing P's wishes, or whether those wishes were always a significant factor but their weight would depend on the individual circumstances. 5. Differing views were expressed in the authorities as to relevance to the decision maker of P "having done the right thing" by his will and being remembered for that after his death. In the present case, the Judge did not place any weight on this factor.
Although there was no previously executed will, a manuscript document in F's handwriting had been found in a Bible, headed 'Will of F… of …'. Thought to have been written in around 1986, it was not witnessed and did not create a valid will, although F had probably thought that it did. It was therefore a document within MCA s 4(6) which had to be considered but was not a 'magnetic feature' of the case. Nor was it a starting point for determining his best interests in relation to the terms of the statutory will (paragraph 77).
Amongst the factors considered were F's moral obligations to the parties and their moral claims on F's bounty, as well as the nature of their relationship with him and the extent to which they each contributed to his wealth. Having taken into account all of the circumstances, the Judge then made provision for F's legacy and authorised a gift to his mother.
Comment: This decision illustrates the continued nuances of judicial opinion over the impact of P's views and P's posthumous remembrance when evaluating best interests. It seems relatively well settled that P's past and present wishes and feelings will always be a significant factor whose weight will vary according to the particular circumstances. In ITW v Z and M and others [2009] EWHC 2525 (Fam), Munby J (as he then was) observed that, in considering their weight and importance, regard must be had to all the relevant circumstances including:
(a) the degree of P's incapacity, for the nearer to the borderline the more weight must in principle be attached to P's wishes and feelings: Re MM; Local Authority X v MM (by the Official Solicitor) and KM [2007] EWHC 2003 (Fam), [2009] 1 FLR 443, at para [124]; (b) the strength and consistency of the views being expressed by P; (c) the possible impact on P of knowledge that her wishes and feelings are not being given effect to: see again Re MM; Local Authority X v MM (by the Official Solicitor) and KM [2007] EWHC 2003 (Fam), [2009] 1 FLR 443, at para [124]; (d) the extent to which P's wishes and feelings are, or are not, rational, sensible, responsible and pragmatically capable of sensible implementation in the particular circumstances; and (e) crucially, the extent to which P's wishes and feelings, if given effect to, can properly be accommodated within the court's overall assessment of what is in her best interests.
How P should be remembered, however, seems less settled in the authorities with clear divergence of opinion. In Re P [2010] Ch 33 Lewison J (as he then was) said at paragraph 44:
"There is one other aspect of the "best interests" test that I must consider. In deciding what provision should be made in a will to be executed on P's behalf and which, ex hypothesi, will only have effect after he is dead, what are P's best interests? Mr Boyle stressed the principle of adult autonomy; and said that P's best interests would be served simply by giving effect to his wishes. That is, I think, part of the overall picture, and an important one at that. But what will live on after P's death is his memory; and for many people it is in their best interests that they be remembered with affection by their family and as having done "the right thing" by their will. In my judgment the decision maker is entitled to take into account, in assessing what is in P's best interests, how he will be remembered after his death."
With this Munby J entirely agreed in ITW, stating at paragraph 38:
"Best interests do not cease at the moment of death. We have an interest in how our bodies are disposed of after death, whether by burial, cremation or donation for medical research. We have, as Lewison J rightly observed, an interest in how we will be remembered, whether on a tombstone or through the medium of a will or in any other way. In particular, as he points out, we have an interest in being remembered as having done the "right thing", either in life or, post mortem, by will. Lewison J's analysis accords entirely with the powerful analysis of Hoffmann LJ in Airedale NHS Trust v Bland [1993] AC 789 at page 829. I respectfully agree with both of them."
On the other hand, Morgan J in Re G (TJ) [2011] WTLR 231, [52]-[53], [64] and Senior Judge Lush Re J (C) [2012] WTLR 121 have expressed their doubts. In the latter, J had an appalling track record, spending his entire lifetime doing precisely the "wrong thing", and "it would be unrealistic to expect him now to undergo some sort of Damascus Road experience simply because he lacks capacity. The notion of doing "the right thing" generates some singularly unattractive arguments…' (paragraph 54). In the former, Morgan J pointed out the making of the gift and/or the terms of the will were being made by the court, and not be P, and unsuccessful members were not likely to think that P had done "the right thing".
It is also worth noting that HHJ Behrens did not use a balance sheet approach when determining the terms of the statutory will in the present case. This comes as no surprise because doubts about the effectiveness of that approach in the context of making such a will have been previously expressed in Re J (C) [2012] WTLR 121 at [53]. Its efficacy would appear to depend upon the need to engage in a risk analysis.
