Re D (Statutory Will); VAC v JAD & Others



Judge: HHJ Hodge QC

Citation: [2010] EWHC 2159 (Ch)

Summary: In brief, and summarizing the procedural history wildly, the matter came before HHJ Hodge QC so that he could consider whether it would be appropriate for the Court of Protection to authorise a statutory Will for an incapacitated adult on the ground that this is in his or her best interests where there is a dispute or uncertainty as to the validity of a recent Will which departs from the terms of an earlier Will. DJ Ashton had earlier refused permission to the JAD’s deputy apply for a statutory will, but upon reconsideration transferred the matter to one of Chancery Circuit Judges in Manchester (sitting as a nominated judge of the Court of Protection) for consideration of this point. In so doing, he had indicated that to exercise the jurisdiction in these circumstances “would encourage many applications where the substantive issue is the validity of a new will made when there was doubt as to testamentary capacity or concern as to undue influence and this Court would be ill-equipped to resolve these disputes.”

After a careful examination of Re P (Statutory Will) [2009] EWHC 163 (Ch); [2010] Ch 33, and Re M [2009] EWHC 2525 (Fam), HHJ Hodge QC determined as follows upon the issues of principle:

“15. As recorded […] above, DJ Ashton was concerned that one consequence of exercising the jurisdiction to direct the execution of a statutory will in any case where there was a dispute or uncertainty as to the validity of a recent will due to concerns about a possible lack of testamentary capacity (or want of knowledge and approval) or the possible exercise of undue influence might be to encourage many applications to the Court of Protection raising issues which that Court would be ill-equipped to resolve. Given DJ Ashton OBE’s unrivalled experience of the work of the Court of Protection outside London, that is a concern that cannot lightly be dismissed. Indeed, one of the points made by Munby J in Re M (cited above) at [50] was that the Court of Protection has no jurisdiction to rule on the validity of any will. It may well be impractical, and inappropriate, for that Court to embark upon a detailed investigation of all the evidence necessary to resolve a dispute as to the validity of a will made by a protected person. Nevertheless, as with the exercise of any jurisdiction under the 2005 Act, the overarching consideration, when deciding whether to direct the execution of a statutory will, must be a judicial evaluation of what is in the protected person’s “best interests”, having considered “all the relevant circumstances”.

16. It would seem to me that the concerns outlined by the district judge are factors which the Court may take into account when deciding whether to order the execution of a statutory will; and they might, in an appropriate case, lead the Court to conclude that it should not exercise its power to do so. But, in my judgment, there can be no presumption, still less any principle of general application, that the Court should not direct the execution of a statutory will in any case where there is a dispute or uncertainty about the validity of a recent will, the terms of which depart from those of an earlier, apparently valid, will. The adoption of such an approach would tend to elevate one factor over all others, contrary to the structured decision-making process required by the 2005 Act. Like Lewison J in Re P (at [41]), I would prefer not to speak in terms of presumptions. Under section 4 (6) (a), one of the relevant factors to be considered by the Court in determining the protected person’s best interests are that person’s past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity). A previous will is obviously a relevant written statement which falls to be taken into account by the Court. But the weight to be given to it will depend upon the circumstances under which it was prepared; and if it were clearly to be demonstrated that it was made at a time when the protected person lacked capacity, no weight at all should be accorded to it. Moreover, Parliament has rejected the “substituted judgment” test in favour of the objective test as to what would be in the protected person’s best interests. Given the importance attached by the Court to the protected person being remembered for having done the “right thing” by his will, it is open to the Court, in an appropriate case, to decide that the “right thing” to do, in the protected person’s best interests, is to order the execution of a statutory will, rather than to leave him to be remembered for having bequeathed a contentious probate dispute to his relatives and the beneficiaries named in a disputed will. I therefore hold that the Court of Protection should not refrain, as a matter of principle, from directing the execution of a statutory will in any case where the validity of an earlier will is in dispute. However, the existence and nature of the dispute, and the ability of the Court of Protection to investigate the issues which underlie it, are clearly relevant factors to be taken into account when deciding whether, overall, it is in the protected person’s best interests to order the execution of a statutory will.”

On the facts of the case, HHJ Hodge QC considered (at paragraph 21) that “sufficient doubts have been raised as to the validity of each of those Wills to lead me to conclude, on the specific facts of this case, that the best interests of Mrs D dictate that I should, here and now, set to rest all concerns about her true testamentary wishes by ordering the execution of a statutory will, rather than leaving her estate to be eroded by the costs of litigation after her death, and her memory to be tainted by the bitterness of a contested probate dispute between her children (which may extend to members of the next generation).” A draft had, in fact, been agreed by Mrs D’s deputy, the OS and all three of Mrs D’s children.

Comment: This case provides further evidence, if such is needed, of the sea change that has been brought about in the approach to property and affairs by the MCA 2005, and, in particular, of the primacy that is required to be given to the best interests of P in all acts done or decisions made for on P’s behalf. It is to be hoped that the very real concerns expressed by DJ Ashton as to the potential expansion in scope of the role of the CoP in the realm of statutory wills (which, in the authors’ view, remain real notwithstanding the correctness of the principled decision taken by HHJ Hodge QC) are not borne out by an expansion in the number of applications for statutory wills.

CategoryBest interests - Statutory wills Date

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