Statutory Wills - Making Wills for People Without Capacity

Feature

posted 15 Nov 2000 in Volume 6 Issue 1

Statutory Wills – Making Wills for People Without Capacity

By Martin Terrell

Practitioners dealing with elderly and incapable clients will no doubt be familiar with the jurisdiction of the Court of Protection in making a statutory will for a person without testamentary capacity. It is often self-evident when such a will might be necessary and the procedures involved are well-established.1 For instance a person may have made a will appointing executors and leaving assets to beneficiaries who have died, or left a specific asset which has been sold. Circumstances change and just as the capable testator should keep his will up to date so too does the incapable testator have a means of having his will brought up to date.

And yet, when it comes to explaining a statutory will, especially to those adversely affected by an application or by the terms of the will, the reaction is often one of some surprise. How can a court assume to know how a person would want to dispose of his estate when that person cannot speak for himself? It is generally assumed that we are free to dispose of our property as we wish and that no one can exercise this right on our behalf. That a court may make a valid will for someone who, prima facie, cannot make a valid will, is essentially a legal fiction. This imposes on the courts and on practitioners dealing with statutory wills a profound responsibility to ensure that the will is appropriate to the circumstances and likely wishes of the individual for whom the will is being made. To see how this can be carried out, it is important to look at the legal framework and how this is used in practice to establish the testator’s mind.

The jurisdiction of the courts to order the dispositions of a person’s estate on his death is a relatively recent one. It was the Law of Property Act 1925 that established a power to direct settlements. This allowed a settlement to be created (usually a revocable life interest) providing for a person’s estate to devolve on the person’s death under the terms of the settlement. These limited powers were replaced by similar powers under the Mental Health Act 1959. It was not until this Act was amended by the 1969 Administration of Justice Act that the courts acquired a right to execute a will. The jurisdiction of the courts is now set out in sections 95 and 96 of the Mental Health Act 1983. Thus, the judge may:

‘With respect to the property and affairs of a patient, do or secure the doing of such things as appear necessary or expedient - (a) for the maintenance or other benefit of the patient, (b) for the maintenance or other benefit of members of the patient’s family, (c) for making provision for other persons or purposes for whom or which the patient might be expected to provide if he were not mentally disordered, or (d) otherwise for administering the patient’s affairs… (Section 95(1)).

Section 96 provides authority to carry out a number of functions on behalf of the incapable person or patient, among which is the authority to make a will:

‘Without prejudice to the generality of section 95 above, the judge shall have power to make such orders and give such directions and authorities as he thinks fit for the purposes of that section and in particular may for those purposes make orders or give directions or authorities for - ... (e) the execution for the patient of a will making any provision (whether by way of disposing of property or exercising a power or otherwise) which could be made by a will executed by the patient if he were not mentally disordered; ...

These two short sections of the Mental Health Act 1983 are therefore the basis of the court’s jurisdiction to make wills on behalf of persons who cannot make wills for themselves. How such a wide ranging power should be exercised in practice has been left to the courts to resolve. In the case of Re D(J)2 the Vice-Chancellor, Sir Robert Megarry set out five principles, factors or propositions to be considered when the court makes a will for the patient:

That it is to be assumed that the patient is having a brief lucid interval at the time the will is made.

That during that brief lucid interval the patient has a full knowledge of the past, and a full realisation that as soon as the will is executed he or she will relapse into the actual mental state that previously existed.

That it is the actual patient who has to be considered and not a hypothetical patient on the Clapham omnibus. ‘Before losing testamentary capacity the patient may have been a person with strong antipathies or deep affections for particular persons or causes, or with vigorous religious or political views; and of course the patient was then able to give effect to those views when making a will. I think that the court must take the patient as he or she was before losing testamentary capacity. No doubt allowance may be made for the passage of years since the patient was of full capacity, for sometimes strong feelings mellow into indifference, and even family feuds evaporate. Furthermore, I do not think that the court should give effect to antipathies or affections of the patient which are beyond reason. But … the court must seek to make the will which the actual patient, acting reasonably, would have made if notionally restored to full mental capacity, memory and foresight.’

That during the hypothetical lucid interval the patient is to be envisaged as being advised by competent solicitors.

That in all normal cases ‘the patient is to be envisaged as taking a broad brush to the claims on his bounty, rather than an accountant’s pen. There will be nothing like a balance sheet or profit and loss account. There may be many to whom the patient feels morally indebted; and some of the moral indebtedness may be readily expressible in terms of money, and some of it may not. But when giving legacies or shares of residue few testators are likely to reckon up in terms of cash the value of the hospitality and gifts that he has received from his friends and relations, and then seek to make some form of testamentary repayment, even if his estate is large enough for this. Instead, there is likely to be some general recognition of outstanding kindness by some gift which in quantum may bear very little relation to the cost or value of those kindnesses.’

The propositions advanced in Re D(J) can be applied where there is some evidence of the patient’s wishes. It may be clear from the patient’s family circumstances or testamentary history who he would wish to provide for. The patient might be able to express his own feelings and views, for example where he is aware of people and purposes but unable to comprehend the value of his estate. It is however more difficult to make a decision on behalf of a patient who perhaps has no family, has never had a will or has been incapable for so long that there is no evidence of the patient’s personality and circumstances which might influence his likely wishes. For example the Court of Protection recently considered the case of a patient who had become mentally incapable as a result of his wartime experiences and spent over fifty years in hospital. He had no family and there was no evidence of his interests or character from when he was capable. As he was cared for at the expense of the state his pensions over half a century accumulated to form a sizeable estate. The court is entitled to exercise its jurisdiction in such cases.

The courts have therefore evolved further propositions to assist in these cases: ‘The court may assume that the patient would have been a normal decent person, acting in accordance with contemporary standards of morality.’ The patient may therefore be presumed to wish to benefit persons and objects associated with him. A patient who spent her life in a community and derived her fortune from being a child of a family would therefore ‘have felt moral obligations to show recognition to the community and to her family’(3).

Where a patient is intestate there is a presumption that the patient, while he had testamentary capacity, would have been satisfied to allow his estate to pass under the intestacy rules. The court must be satisfied that the patient would wish to depart from the results of an intestacy (4) .

Likewise, where the patient’s wishes were ascertained clearly at a particular time prior to the onset of the patient’s incapacity, then there is a presumption that the patient would not want to alter those wishes. For example where the patient had made a valid will previously, the burden is on the applicant to demonstrate why the patient would depart from those clearly expressed wishes.

Where there is any doubt about the likely wishes of the patient, the burden is on the applicant to justify the changes to the pre-existing dispositions. In the words of Ferris J, “the court needs to have a fair degree of assurance that what it proposes to do does indeed represent the wishes of the patient and that it is what she would decide for herself if she were temporarily to recover her capacity and to receive proper advice as to her position.” (5)

A further difficulty arises in ascertaining the likely views of a patient who rather than having no definite views may have quite negative views or a history of parsimony towards his family. The courts may safely presume that where there is a choice between paying more tax or less tax, the patient would follow the course which involved least tax being paid (6).

These propositions or guidelines are not exhaustive and cannot be applied in every case. It is often a starting point only to establish the nature of the patient’s intentions, the court must still determine how these intentions are to be expressed. “In matters of detail, there must be a range of choices which would be equally valid.” (7)

As the court has a wide discretion as to how a patient’s wishes should be interpreted and then as to how they should be carried out, the applicant (8) has a duty to provide as much evidence as possible about the patient, covering matters such as family ties and obligations, personal and social history, past wills and acts of generosity as well as the size (and likely size) of the estate. Applications are made in the first instance to the Court of Protection and invariably heard by the Court of Protection (although the High Court exercises the same jurisdiction of ‘the judge’ under the Mental Health Act 1983). The Official Solicitor will usually be made a party to the application to represent the patient and anyone adversely affected by the application will need to be notified. The parties involved will make written submissions and may be heard at an attended hearing. The court’s role is effectively an ‘inquisitorial’ one where it considers all the evidence, and in the light of any judicial propositions which may be appropriate to the case, establishes a view of what the patient would have wished if momentarily restored to testamentary capacity.

The advantage of this approach is that where applications are heard by the Court of Protection, they are relatively informal and geared towards seeking a consensus as to the patient’s likely wishes. Relatives or friends involved in the hearing are encouraged to put their views forward and a personal testimony may be as relevant as a detailed affidavit. The Court of Protection has a wide discretion as to the form in which it receives evidence (9) and how notice of such evidence should be delivered (10). The overriding aim is to establish from the facts before the court the terms of the will which the patient would have wished to make.

There is, however, a danger in seeking to establish facts where they are controversial and liable to different interpretation. There is, for instance, little scope for cross-examination of witnesses. Cases come before the court where there is a great deal of animosity between relatives, whether the sums involved are small or great (11). So-called ‘dysfunctional families’ try to contest a patient’s will while the patient is still alive. In an emergency application parties may receive inadequate notice. Where a party feels that his or her case has been inadequately aired, the only remedy is an appeal to the High Court. Such an appeal must be made within 14 days of the order authorising the statutory will being drawn up and entered. While appeals can be heard swiftly, they do involve some delay and yet greater expense.

A further problem confronts the frustrated party if the patient dies before the appeal can be heard. The statutory will is effective immediately it is executed (12). This is on account of the legal fiction referred to earlier that the statutory will made by the court and executed in accordance with the Mental Health Act 1983 takes effect as a valid will under the Wills Act 1837. This serves to reinforce the importance to practitioners of ensuring that applications for statutory wills are prepared as thoroughly and carefully as possible.

By Martin Terrell, Rix and Kay

References

1 See for instance ‘Statutory Wills – A Case Study’ by Caroline Bielanska, ECA [? Number] June 1999 and the Court of Protection’s Procedure Note PN9

2 Re D(J) [1982] 2 All ER 1982 37; [1982] Ch 237

3 Re C [1991] 3 All ER 866 at 870 per Hoffman J

4 Re S [1997] 1FLR 96 per Ferris J and Re Freeman [1927] 1 Ch 590

5 Re R (1998) unreported

6 Re WJGL [1965] 3 All ER 865; [1966] Ch 135

7 Re C as above

8 Who may be any of the persons prescribed by the Court of Protection Rules 1994 Rule 20

9 Court of Protection Rules 1994 Rule 30(1)

10 Court of Protection Rules 1994 Rule 21(1)