Analysis
JC had four biological children: A, B, C and D. A was born in 1942 to a 15-year old mother. He was subsequently fostered, but throughout his life always understood JC to be his father and in the forty years preceding trial had worked and been in regular contact with him. JC denied parentage of A, but paternity was conclusively established by a court authorised DNA test. B and C were born in wedlock, in 1953 and 1955 respectively. However, they first had contact with their father in or around 2006/7. Their relationships remained strained, C in particular refusing to attend the hearing as a consequence of offensive remarks JC had made in relation to her appearance, lifestyle and sexuality. D, who was born in 1958 to JC’s then ex-wife as a consequence of alleged post-marital rape, was adopted at birth and renamed by her adoptive parents. Despite having taken steps to locate her biological family, and having established a bond with her sister, C, she had to the date of trial had no contact with her father.
On 26 August 2010, JC’s deputy for property and affairs applied for authorisation to execute a statutory will. Notes of attendance, recorded by JC’s deputy, a medical expert and the Official Solicitors’ representative, demonstrated a clear desire on JC’s part to remain intestate. By consent, the court authorised a will appointing professional executors and directing that JC’s residuary estate, amounting at the time of trial to some £3,500,000, be divided equally among those who would be entitled on intestacy. This was duly executed on 6 January 2011.
By an application of 28 September 2011, D, who, by virtue of her adoption, would not be entitled on JC’s intestacy, applied for a further statutory will. It was contended that JC’s distant relationship with his four children and the unusual and extenuating circumstances of D’s birth and subsequent adoption made equal division of the residuary estate (between A, B, C and D) ‘the right thing’. In opposing D’s application, A sought amendment of the existing statutory will so that his share of the estate would pass by his will or intestacy should he predecease JC.
Held (dismissing D’s application but amending JC’s existing statutory will so that each residuary beneficiary’s share, should they predecease their father, would pass by their respective will or intestacy):
- (1) While the court no longer stands in the testator’s shoes, ‘substituted judgment’ was subsumed into s4 of the Mental Capacity Act 2005 and particularly into those factors relevant to statutory will applications. JC’s desire to remain intestate essentially defined his best interests. The only countervailing factor was his family dynamic, making it in JC’s interest that professional executors were appointed and that each beneficiary entitled to his estate should be able to direct the devolution of their share if predeceasing JC.
- (2) The notion of being remembered for doing ‘the right thing’ generates singularly unattractive arguments and had no application to this case. JC had spent his lifetime doing ‘the wrong thing’ and it was not accepted that his children or others would remember him any more fondly for having made equal provision for all of his biological children.
- (3) Because this application, as with most statutory wills, did not require a risk analysis by the judge, the ‘balance sheet approach’ was of little value.
- (4) It was the ‘factor of magnetic importance’ in this case, that D had, by a conscious decision, never contacted or met JC. Had D, even though she was not his child in the eyes of the law, formed a relationship with JC that was even remotely similar in quality to his relationship with his other biological children, it is likely that the court would have authorised a new will making some kind of provision for her benefit.
- (5) Costs charged to JC’s estate. The existing statutory will was temporary in measure and the court had invited D to obtain legal advice and to consider her position. Taking into account the parties’ conduct and the size and nature of JC’s estate, it would have been unjust to depart from r156 of the Court of Protection Rules 2007.
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