Re Peter Jones
Judge: District Judge Eldergill
Citation:  EWCOP 59
In this case, decided in November 2014, but which only appeared on Bailii very recently, District Judge Eldergill heard an application by deputies for the execution of a statutory will (P being intestate) and one by P’s daughter for a substantial lifetime gift. The facts need not concern us but the District Judge usefully summarises the law relating to the making of statutory wills and in particular the thorny issue of how to approach the perceived need to ensure that P is seen to “do the right thing”.
He noted that in Re M, ITW v Z & Ors  EWHC 2525 (COP), the President did not on the basis that it was somehow the right thing to do make provision in the statutory will for a legacy for J, who was the one person to have maintained a relationship with M and who continued to visit and telephone her. In so deciding, a ‘’particularly compelling feature’’ was that J:
‘’would be gaining a benefit which M, while she had capacity, felt that he did not need and which, it would seem, she still thinks he does not need. How can it be in her best interests to go counter to such long-held views? The only proper answer, it seems to me, would be if it could be said that giving him a legacy was either an appropriate reward for what he is now doing for M or an inducement to him to do more for her; but neither, in my judgment, can be justified in the circumstances as they exist (at para. 57).’’
Paragraphs 62-68 and 70-75 are worth setting out in full
- The Act requires the decision-maker to consider the past and present wishes and feelings of the relevant person, the beliefs and values that would be likely to influence their decision if they had capacity and the other factors that he would be likely to consider if they were able to do so. In my view, where P with capacity has just made a will excluding Y and/or has recently expressed clear views that he dislikes Y, does not want to see Y and does not want Y to share in his estate, and P is then incapacitated by a stroke, in ordinary circumstances it would be inappropriate to make use of his incapacity to now make a Will in favour of Y simply because the decision-maker believes he ought to have done so.
- Taking such an approach would run counter to testamentary freedom and the wishes, feelings, beliefs and values provisions of the Mental Capacity Act 2005 and lead to inconsistent and arbitrary outcomes. In the example just given, if P is not struck down by a stroke then — subject to the limits imposed by the Inheritance (Provision for Family and Dependants) Act 1975 — he is fully entitled to be as unappreciative of Y’’s merits and needs as he wishes and Y gets nothing. If he is struck down by a stroke a third-party decision-maker can ‘’correct’’ his wish not to leave anything to Y (and his clear wish not to be remembered with any greater affection by Y than he felt for Y) by substituting their own view or society’s view as to what P ought rightfully to have done.
- As Baroness Hale made clear in Aintree, the purpose of the best interests test is to consider matters from the particular individual’s point of view. Occasionally there may be circumstances such as those referred to by the President or the avoidance of post-death litigation which justify departing from a person’s clear past and present wishes and beliefs. However, in the ordinary case the Mental Capacity Act is not a vehicle for imposing on people views, wishes and feelings that clearly are contrary to those they held before losing capacity, do not hold now and would not hold if they regained capacity, however right those views may be, and however unworthy P’’s views are according to most people’s standards.
- The onset of mental incapacity is not an opportunity for moral correction.
- That still leaves room, of course, for the case at the other end of the spectrum where the court authorises a statutory Will which makes good the omissions of P but does not seek to correct their considered acts and decisions. For various reasons all of us never quite get round to doing many of the things we know we ought to do. Making a Will may be one of them. Most people would wish to make a Will if they knew both that they were going to be incapacitated by a stroke tomorrow and the consequences of dying intestate or leaving a defective Will. They would seek to avoid the sometimes arbitrary nature of intestacy, the consequences of dying intestate on those dear to them, the resulting inconvenience and worry for their family, the possibility of family discord and avoidable litigation arising from a failure to make clear their intentions.
- Thus, in the absence of clear evidence to the contrary, one is entitled to assume that had P given proper thought to their pending incapacity and intestacy he or she would have wanted to put their house in order and make a Will. They would want to do the right thing and not to leave family members with such unintended consequences and problems. Hence, it seems to me, the case law emphasises that adult autonomy is not the only consideration and that in many cases 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 a Will.
- That is a long-winded way of saying that in the absence of evidence to the contrary most people want to do the right thing by their family and loved ones and a judge is entitled to take that view, in the absence of evidence to the contrary and any relevant legal considerations.
- At one stage I thought that there might have been a difference of opinion or emphasis as to what is meant by the phrase ‘’substituted judgement’’.
- “Substituted judgement” is a principle which holds that surrogate decisions should be made by establishing as accurately as possible the decision which the incapacitated person would have made for themselves if they had capacity. Section 4 states that it is one of the things for the judge to consider.
- The Law Commission argued that ‘’best interests’’ on the one hand and ‘’substituted judgment’’ on the other were not in fact mutually exclusive. It favoured a ‘’best interests’’ criterion which contained a strong element of ‘’substituted judgment’’ (Law Com No 231, para 3.25).
- A main reason for rejecting a pure substituted judgement test was not that the views, beliefs and values of an incapacitated person are unimportant but that they are important (Law Com No 231, para 3.29):
“One of the failings of a pure ‘substituted judgment’ model is the unhelpful idea that a person who cannot make a decision should be treated as if his or her capacity were perfect and unimpaired, and as if present emotions need not also be considered.”
- One must take into account and give weight to the person’’s present wishes and feelings, and what they now view as important, and not just the values and beliefs which they held when they had capacity, even if more objective.
- Furthermore, as the Commission noted when rejecting a pure substituted judgment approach, if a person has never had capacity then ‘substituted judgment’ is impossible and there is no viable alternative to a best interests approach.
In the end, the District Judge ordered the execution of a statutory will that left 75% of P’s estate to his wife and 25% to his daughter with a substantial advancement by way of a lifetime gift (broadly following the suggestions made on P’s behalf by the Official Solicitor).
Although a decision which, strictly, has no precedent value, we anticipate that, as with many other decisions by District Judge Eldergill, both practitioners and members of the judiciary will refer in future to the clear summary of the law at paragraphs 62-68. We suspect the ringing statement at paragraph 65 is likely also to feature in many a training session.
Paragraphs 72-75 will also, we suspect, be pored over as we grapple with what the Convention on the Rights of Persons Disabilities means when it demands that we ensure ‘respect for the rights, will and preferences’ in any legal procedures invoked in relation to persons said to be unable to take their own decisions (as to which see further the next case note)