Wills for persons without capacity

Feature

posted 17 May 2001 in Volume 6 Issue 4

By Keith Lock, senior lawyer in the office of the Official Solicitor and Public Trustee.

Introduction

There is now a well established jurisdiction given to the Court of Protection enabling authority to be given to execute a will or codicil on behalf of a person lacking testamentary capacity (referred to in the legislation as a “patient” but in this article as a client). The procedure is set out in the court’s practice notes PN9 and (for attorney cases) PN9A. For brevity, only wills are referred to in this article. It is also worth consulting PN5, which sets out the procedure to be adopted when a client, though under the Court of Protection, still has testamentary capacity. These notes can be obtained from the court, or from the web site of the Official Solicitor and Public Trustee at www.offsol.demon.co.uk. The Official Solicitor is normally requested by the court to represent the client for the purpose of the application.

Many solicitors have never before come to the court for a statutory will, and this article is intended to provide some practical commentary, and some examples of the situations in which it is found appropriate to execute a statutory will. It is not intended to provide a detailed legal treatise on the statutory provisions, or the case law which might be applied by the court[1], and the range of topics covered inevitably means that each can only be dealt with fairly superficially.

The application

The court is able to provide copies of its practice notes, and some help with the procedure, but cannot be expected to give advice on the merits of any proposed application. The court staff may suggest that the Official Solicitor’s office be contacted to enable the matter to be discussed, but not for the purpose of approving the paperwork in advance of an application being made.

The jurisdiction is usually fully established by the completion of the court’s medical report in form CP3 (when a receiver has been appointed this should be with the court’s papers, but will have to be obtained in attorney cases), and the provision of a recent (normally separate) medical report showing that the client does not have testamentary capacity. Failure to satisfy any one or more of the essentials of testamentary capacity would be sufficient; i.e. the capacity to understand the nature of the document being executed, the extent of the property to be disposed of and the claims of those to be benefited by or excluded from the will[2].

In all cases the court is concerned to have full information about the client’s current health and prospects of life, his life history, his relationships with his family and other close friends over the years, his occupation, interests, and any concern or support for charitable objects. When preparing the family tree, particularly if extending beyond a simple nuclear family, it is helpful to provide this in a tabular form in landscape presentation, with each generation kept at the same level on the paper. This is frequently an extremely useful source of information, more rapidly conveying detailed relationships than is possible by written description, and should incorporate all relevant extensions of the family e.g. by marriage.

It is also necessary, in addition to giving full details of the client’s assets, with current values, to provide a schedule giving the client’s approximate annual income, net of income tax, and expenditure, for the purpose of estimating the rate at which the client’s estate may be appreciating or diminishing. With many elderly clients in fee paying accommodation it is of course common to find that net income is substantially exceeded by expenditure, with clear implications when considering pecuniary legacies or shares of residue.

Practitioners sometimes forget to keep copies of the application and supporting documents, which they require for themselves, and for service on other parties - there is a reminder about this in PN9.

A common thread linking many of the applications is the element of controversy that inevitably arises when trying to work out what the client would do if of full capacity. It is usually necessary to involve those who might be adversely affected by the applicant’s proposals i.e. who would otherwise have an interest (or greater interest) in the client’s estate under the current will or on intestacy[3].

There is an understandable anxiety that other persons may have to be notified of an application. After all, the making of a will is usually an entirely private and confidential affair, and it is often thought that the position should be no different in the Court of Protection. It is also often suggested that the merits of the application are so clear that no purpose would be served in notifying e.g. relatives who have not been in touch with the client for many years.

Practitioners will nevertheless appreciate that the court has to be appraised of all the relevant facts of the case before deciding what the client would do in his or her lucid moment. This is the test applied by the court[4]. It is common to find that one branch of a family has little or no knowledge of the extent and quality of the relationships between the client and the members of another branch of the family. Remember this when drafting the application, and that considerable distress can be caused when no allowance is made for the possibility of new evidence coming to light. Thus, the responsible applicant, on discovering the facts disclosed by the other party to the application, might choose to modify the terms of the proposed will. A creditable application is likely to have treated these delicate family matters with some tact.

It is sometimes also suggested that an application would have been unnecessary if the applicant had thought to make his intentions known to the affected persons (which would involve the disclosure of confidential information including the client’s current testamentary position) and consulted about what should be done. This may sometimes be appropriate e.g. within a nuclear family, and consents might be produced in support of the proposed will, but as between comparative strangers and when the scope for controversy is substantial, this is unlikely to be appropriate, or a practicable course of action.

When notifying persons joined as parties by the court, it is helpful to write an explanatory letter inviting comment on the application, either to the applicant’s solicitors, the court, or indeed to the Official Solicitor. Ask whether they intend to seek legal advice and/or make any representations to the court.

Remember that although costs are in the discretion of the court, it is usual for there to be a detailed assessment by the court of the costs of all parties on the indemnity basis, to be paid from the client’s estate.

The formal clauses to incorporate within the will are set out in PN9. These should be followed exactly: it is surprising how often the attestation clause in particular is altered, which would give rise to difficulty when trying to prove the will after the client’s death. The wording seems odd, but ensures compliance with the statutory requirements. Note especially that the name of the person who is authorised to execute the will appears five times in the will as a whole.

The appointment given by the court is usually intended to be the full hearing of the application, not a directions appointment.

The person authorised to execute the will can be the applicant even if the applicant is to benefit under the will. However, it is sometimes expedient (e.g. in cases of emergency) for some other person to be authorised to execute the will. This could be the solicitor or legal executive having the conduct of the application. The three important steps in completing the will are (a) the order itself which recites that authority has been given to a particular individual to execute a will in the form approved and initialled by the Master, (b) the execution of the will by that individual, and (c) the sealing of the will (which it has been held can be completed after the client’s death[5]). The order is not of itself sufficient, the will must actually be executed by the person authorised so to do.

Full supporting information is needed even if the application seeks a codicil addressed only to a change of executors or other simple point because the Court may need to review all the provisions of the existing will.

In cases of extreme urgency, the Court will make every effort to assist; a telephone call to the Registrar (020 7664 7352) or the Registrar's Assistant (020 7664 7208) is advisable.

Potential Intestacies

Many applications are made where a client has never before made a will. These can broadly be categorised as follows:

1. A client has been wealthy for many years and then becomes a patient, or vice versa.

The first hurdle to overcome is the presumption that the client would have been content with the will written for him or her by statute! This does of course depend on the facts of the case. If there is evidence of intention to make a will, this will greatly assist the court. In one recent case the client had written out what he wanted to do, signed it, but not so as to satisfy the requirements of the Wills Act. He made an appointment with his solicitor to discuss making a will in those terms, and then had a stroke a day before the appointment.

There can be no presumption if a will only became necessary after the client became a patient.

While the client may have been content to allow his or her estate to pass e.g. to a spouse and/or child, the presumption would not apply if the spouse or child died after the client became a patient.

2. A client has been a patient from birth.

If the client has been cared for in the community from public resources, the court will be guided by case law[6].
The claims of the statutory next of kin might be strengthened if they have been actively involved in some way with the care of the client

3. A client has no known statutory next of kin

The absence of known statutory next of kin is not of itself necessarily sufficient reason to make a will in favour of charity to avoid the estate going to the crown in bona vacantia.
Although it may be expedient to make a will appointing executors, such will may still include a combination of kin search provisions, and gifts to charity.

4. A client is injured in an accident, suffering brain damage. Compensation is eventually awarded, either while the client is still a minor (perhaps of less interest to the readers of this publication!), or after attaining 18 years. Please note:

A will cannot be executed for a minor, but a testamentary settlement may sometimes be appropriate instead. However, there are doubts as to the legal effectiveness of this type of arrangement if it is intended to exclude any relevant statutory next of kin from benefiting after the client’s death. It is suggested that in general such settlements should only be considered if the persons who would have benefited on intestacy agree the terms of the settlement.
Damages awarded for personal injury should be used for the purpose for which they are given, that is, for benefit of the client. Even where substantial awards are made, the funds should normally be exhausted during the client’s lifetime. Potential beneficiaries may have an unrealistic expectation of a windfall inheritance, but it is acknowledged that there is a need to provide for the unexpected early death.

Current will out of date

The most common situation for elderly people is to find that a properly prepared will, made at a time when there can have been no doubt about the capacity of the client, requires to be updated to take account of changed circumstances, such as:

1. Death of a beneficiary named in the will.

2. Disposal of an asset specifically bequeathed; please note:

Section 101 of the Mental Health Act contains saving provisions, and may well apply if a receiver has already been appointed, and has disposed of the asset pursuant to an order of the court. Any person who would have taken an interest in the property but for the disposal shall if circumstances allow take the same interest in any property representing the property disposed of, and directions can be given to place such money in a separate account. However, it is still advisable to consider a new will, which may offer a better solution;
An attorney can apply to the court for an order for sale under the Mental Health Act, thus triggering section 101, without the enduring power of attorney being revoked, but an application for a statutory will is normally the preferred option.

3. Erosion by inflation of pecuniary legacies fixed many years ago.

4. Changed family circumstances such as the marriage of the client, birth of children to the client.

5. The need for tax planning provisions to be incorporated in the will of the client and his or her spouse.

These, and other similar circumstances, are of course entirely familiar to practitioners, and it is no surprise that the Court of Protection can assist in finding a solution to such problems on the client’s behalf.

Current will made in controversial circumstances

Practitioners are only too aware of the need for vigilance when making a will for an elderly person. Many of their clients are vulnerable, or perhaps at the threshold of deterioration due to dementia. With hindsight the problems are all too obvious when faced with a contentious statutory will application. Note the golden rule in Kenward v Adams Times 29 November 1975.

It is very important to remember that the Court of Protection has no power to pronounce on the validity of a will or codicil, it can only authorise the execution of a further will in the light of evidence submitted. However, the court may take into account the circumstances in which such a will may have been made.

If any issue is raised in respect of the client’s current will then it is important to establish the point at which the client’s testamentary wishes were not in issue. This is usually some earlier will, and it is very helpful to have a sight of the will files held by the solicitors who took instructions for both the current will and any earlier will. Consider the following:

1. Doubts as to capacity

If any medical records are contemporaneous, or close to the date of the will in issue, copies of the records could be extremely helpful. The views of a doctor who knew the client at the time may also be of assistance, but it is unusual to ask for an expert, who has no personal knowledge of the client, to examine the records and express a view; The court will take into account the reliability of the will in light of the medical, and other, evidence, but cannot pronounce on its validity.

2. Previous wills

When there is a series of wills, it is sometimes helpful to prepare a schedule of the provisions contained in them, to facilitate a comparative examination;

The client’s knowledge and understanding of any earlier wills can prove to be a critical element in considering the reliability of the current will.

3. Suspicion of undue influence or pressure

A dramatic alteration in the client’s testamentary position is not of itself evidence of such influence;
Although undue influence or pressure may be cited in the evidence before the court, perhaps in category 2b, when memory is beginning to fail, and a client starts to rely heavily on another person for support with every day living, it is hardly surprising that a committed carer, acting beyond the call of duty, looms so large in the client’s affections. The question to be asked is whether the client has thereby overlooked close family, or other persons, for whom proper provision has previously been made.

Keith Lock is a senior lawyer in the office of the Official Solicitor and Public Trustee.

Contact details: Court of Protection, Stewart House, 24 Kingsway, London WC2B 6JX

DX 141150 Kingsway 2 Telephone 020 7664 7352/7208

Official Solicitor: 81, Chancery Lane, London, WC2A 1DD

DX 0012 London/Chancery Lane Telephone 020 7911 7127

References

[1] Practitioners can refer to section 96(1)(e) of the Mental Health Act 1983, and Re D(J) [1982] 2 All ER 37, as the essential legal starting points, and to the Court of Protection Rules 2001 for procedural matters.

[2] Banks -v- Goodfellow 1870 LR 5 QB 549

[3] Re B [1987] 2 All ER 475. PN9 indicates that no person (other than a receiver or attorney) should be given notice of the application until the court has so directed. In cases of doubt, the court seeks the advice of the Official Solicitor, but the decision as to who should be joined as a party is for the court to make.

[4] Re D(J) [1982] 2 All ER 37

[5] Re Hughes, deceased Times 8 January, 1999

[6] Re C [1991] 3 All ER 866