Judge: District Judge Ellington
Citation:  EWCOP 31
In 2007, when P was 54, he suffered a cardiac arrest and fell into PVS. He had an estate of over £17 million and no dependents, and was cared for in hospital funded by the NHS.
He was a supporter of the Labour Party and other left leaning organisations and, prior to the onset of PVS had made modest annual donations to such causes. He had also made substantial charitable donations.
The court had previously authorised the making of a statutory will that benefited his, independently wealthy, siblings and charities. The deputy had continued the payments to the Labour Party and left leaning causes.
The Deputy applied for retrospective authorisation of the political donations and for tax planning donations to the siblings and charities that benefitted under the will.
The Official Solicitor supported the former but not the whole of the latter, arguing that any large donations should only be made from excess income and not capital.
The court performed the usual checklist balancing exercise making it clear that there was no default position from which the court would start and that, in relation to tax planning, affordability was only a necessary condition not a sufficient one.
In the end, the court had no difficulty authorising the past and future modest donations to political causes, there was ample evidence of P’s pre incapacity desire to benefit those causes.
As regards tax planning, evidence of a desire so to do was absent and, ultimately, the court decided that it was only in P’s best interests to make donations out of surplus income (both accrued and for the future).
This case illustrates that the availability of capital is a necessary condition for tax planning donations but not sufficient. What will be sufficient will depend on each case but an inclination pre incapacity of the desire so to do will go a long way.