Crafer v Jesshope

Analysis

The application concerned a rift within the Jesshope/Crafer family. Mrs Edith Jesshope, aged 89, was the respondent. Mr Hubert Jesshope, aged 90, had been married to Mrs Jesshope for 65 years. Mrs Jesshope was the mother of Graham and Susan. The applicant was Susan’s husband, Mr Ian Crafer.

In mid-2008, Mr Jesshope took steps to require Graham to move out of the long time family house in Esher owned by Mr and Mrs Jesshope. Mrs Jesshope asserted a wish to live with Graham instead of Mr Jesshope. A rift emerged between Mrs Jesshope and Graham on one side (liviing in the Esher house), and Mr Jesshope (living in a private residential home) and Mr and Mrs Crafer on the other side.

On 7 January 2009, Mrs Jesshope had executed a lasting power of attorney (LPA) in favour of Victor Hatch and Rhiannon Kynaston, who were two partners in the firm of solicitors that was acting for her.

Mr Crafer’s application was made in February 2009. It originally sought his own appointment as deputy for Mrs Jesshope in respect of welfare and property and affairs. The grounds of the application were that Mrs Jesshope’s conduct in failing to support Mr Jesshope and instead to carry through a wish to live with Graham and to refuse to see her daughter, son-in-law and husband were so out of character and irrational that Mrs Jesshope had either lost capacity or was being manipulated or coerced by Graham. Mr Crafer argued that Mrs Jesshope had changed inexplicably from her previous self, had failed to submit to a further psychiatric examination, had expressed a wish in the LPA to assist Graham with legal fees that was either irrational or suspicious, and had made a series of unwise decisions and pursued litigation that she could ill afford. Mr Crafer subsequently amended his application to dispute the validity of the LPA by alleging Mrs Jesshope’s lack of capacity at the time of its execution and to seek to revoke it on the basis that the chosen attorneys were unfit to hold the appointment. Mr Crafer sought to rely on various criticisms of Mrs Kynaston made by several judges in the course of related proceedings.

Held (dismissing the application and declaring in favour of the LPA)

1. (1) Mr Crafer comes to the application from an entrenched position in the family rift. He is incapable of seeing the situation with detachment or objectivity (para [22]). Mrs Crafer’s presence looms in the background. There is a pattern of behaviour of her seeking to lobby, pressure or cajole authorities round to her point of view. Mr Crafer had made the application, rather than Mrs Crafer, presumably to protect her from cross-examination (para [26]).
2. (2) Any submission that comments made by judges in respect of Mrs Kynaston constitute a binding finding of fact or res judicata or is even persuasive is rejected. It is at best a mere obiter dictum (not even a finding of fact), an opinion based only on the material available to the judge (para [29(vi)]).
3. (3) The LPA is regular and regularly obtained on its face. This is the mechanism laid down by statute to guard against the later questioning of the capacity of the donor of an LPA. Accordingly, the burden is thrown onto the challenger to prove on the balance of probability that Mrs Jesshope lacked capacity, which Mr Crafer fails to do (para [32]).
4. (4) Mr Crafer fails to satisfy this burden owing, firstly, to the strong preponderance of medical evidence (there is none to suggest Mrs Jesshope lacked capacity in January 2009) and, secondly, by the compelling additional evidence of how the LPA came to be executed (paras [33]-[34]). None of Mr Crafter’s points carries any serious weight (para [37]). Mrs Jesshope’s behaviour was entirely rational once the importance to her of Graham’s presence and company is recognised. An explicable response by Mrs Jesshope to having her wishes ignored or overridden was regarded, by Mr Jesshope and Mr and Mrs Crafer, as ever stronger evidence of lack of capacity. It was no such thing (paras [40]-[42]).
5. (5) No one can be required to submit to a psychiatric examination against their wishes. Anyone of full capacity would quite reasonably regard such a request as intrusive or impertinent (paras [45] and [147]-[155]). It is no part of a legal adviser’s duty to seek to persuade a client to submit to a psychiatric examination. If the client’s wishes are known and clear, it may be the legal adviser’s duty to protect the client from the obvious pressure (para [47]). Mrs Kynaston had been in a position where she was obliged to do all she could to assist Mrs Jesshope achieve her objective, even at the risk of displeasing the court, provided she could do so without misleading the court or disobeying a court order made with proper jurisdiction (para [155]). None of the judicial criticisms of Mrs Kynaston was such to cause the LPA to be revoked (para [156]).
6. (6) The renunciation by Mr Hatch of his power under the LPA did not affect Mrs Kynaston’s appointment (para [60]). The court could only revoke Mrs Kynaston’s appointment if satisfied that she was behaving or proposing to behave contrary to Mrs Jesshope’s best interests (paras [65]-[70]). This does not require limiting the relevant ‘behaviour’ to behaviour as or in anticipation of acting as attorney (para [73]). The allegations made by Mr Crafer have been exaggerated and played up for all they could be worth (para [86]) and too many turned out to be inaccurate, exaggerated or simply misconceived (para [134]).
7. (7) Even if Mrs Jesshope had not had capacity to execute the LPA, Mrs Kynaston was a most suitable appointee as deputy in Mrs Jesshope’s best interests (para [178]).

JUDGMENT HHJ Marshall QC: Introduction [1] At the end of the hearing on 23 November I stated my intention, in the interests of speed, to produce an outline judgment only, and to give a fuller reasoned judgment to follow. In the event, I did not find it satisfactory to produce an outline judgment only. This …

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