ADS v DSM & ors [2017] WTLR 819

Analysis

JKS and her late husband had two sons, ADS and DSM. She brought proceedings against the former in August 2012 seeking relief in respect of (a) a transfer by her late husband to ADS of his parents’ matrimonial home (at which she and her late husband continued to live) and (b) a transfer by her late husband to ADS and his wife of a piece of land adjoining other property. Serious allegations were made by JKS, including allegations of undue influence by ADS. On the death of JKS’s husband a significant sum of inheritance tax was due in respect of the reservation of benefit in the matrimonial home transferred to ADS. The proceedings were eventually settled in June 2014 by which time JKS had lost capacity to litigate and MH was appointed to act as her litigation friend. It provided, inter alia, that an application should be made to the Court of Protection for a statutory will in terms which divided JKS’s estate in equal shares between ADS and DSM. MH duly made the application but the judge in the Court of Protection did not authorise a statutory will in the terms contemplated, instead authorising one that divided the estate unequally between ADS and DSM in the respective proportions 25%/75%. ADS appealed.

Held (allowing the appeal):

A significant factor leading to valid grounds of appeal was the failure by the parties properly to prepare the case for hearing by identifying the issues of law and fact that needed to be considered and determined in applying the approach set by the Mental Capacity Act 2005 (the Act). The approach to be taken by the court to the making of a statutory will accords with the approach taken in Briggs v Briggs where the test is not ‘what the patient (P) would have done’ if of full capacity but rather a best interests test that requires the decision maker to perform a weighing or balancing exercise between a range of divergent and competing factors. In that exercise the force, clarity or certainty of conclusions that found competing factors affects the weight to be given to them and that weighing exercise was not a linear or binary exercise. In some cases, P’s wishes and feelings when he/she had capacity can have great weight in determining what would be in his/her best interests; in other cases, his/her express wishes and feelings after losing capacity to make a relevant decision can also have great weight. It followed that an approach to the respective weight to be given to expressions of P’s testamentary wishes that failed to take account of his/her capacity when they were made and so, inter alia, his/her ability to take account of relevant past and present circumstances, the factual accuracy of reasons expressed by him/her at the relevant times, any influences to which he/she may be subject at those times, and the way in which his/her wishes and feelings had been obtained would not comply with the approach dictated by the Act. In the context of this case, the correct approach meant that the following factors must be considered:

1. (i) how JKS’s capacity at the time she made relevant statements is to be taken into account when assessing their weight;
2. (ii) whether assertions made by JKS in connection with her expressions of testamentary intentions had a sound factual basis and so could be said to be rational, sensible and responsible;
3. (iii) whether JKS was the victim of any inappropriate influence when expressing her testamentary wishes and feelings;
4. (iv) how the terms of, the reasoning behind, and any statements of testamentary wishes or feelings or representations made by or on behalf of JKS either (a) at the time of or (b) by, with court approval, entering into a settlement of the proceedings between her and ADS and approved by that court as being in her best interests should be taken into account; and
5. (v) what disputes of fact have to be resolved to enable the court properly to assess these factors.

The factors set out above raise the need to consider whether the making of a will in different terms to those contemplated by the settlement of the proceedings would:-

1. (i) run counter to any expressions of JKS’s testamentary wishes and feelings;
2. (ii) be a breach by JKS of her express or implied contractual obligations under the settlement approved on her behalf;
3. (iii) be a breach of any representations made by or on behalf of JKS; or
4. (iv) be generally regarded as an inequitable, unconscionable or capricious result.

Those questions meant that a thorough investigation of the circumstances relating to the making and approach to the settlement needed to be carried out (including what, if any, statements she made at that time about her testamentary wishes and feelings). All of these were circumstances of this case. In particular, the fourth point related to whether the expressed view and its implementation was rational and whether she would be remembered or perceived as having done the right thing. In that context, the court when making or advancing a decision under the Act on behalf of P ought to be as honest as other people and so should take into account whether giving weight or effect to any statements of wishes and intentions would found an unconscionable result. As the approach described above was not carried out, the Court of Protection judge erred in principle and further or alternatively failed to take into account relevant features of the case. Thus, the appeal should be allowed and remitted for decision.

JUDGMENT CHARLES J: Introduction [1] This is a public document. The hearing of this appeal was in public and I made an anonymity order in standard terms under the Transparency Pilot. [2] The appeal is against an order made by a Tier 2 Court of Protection Judge (the COP judge) authorising the execution of a …

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