Jones, Re [2014] EWCOP 59

This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the incapacitated person and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court. The names of the parties have been anonymised. The names used within the judgment are pseudonyms.Case No 1229673T[2014] EWCOP 59
IN THE COURT OF PROTECTION
Date 12 November 2014
IN THE MATTER OF THE MENTAL CAPACITY ACT
AND IN THE MATTER OF PETER JONES
Court of Protection,
First Avenue House, London
Before
District Judge Eldergill
IN THE MATTER OF PETER JONES
Hearing HEARD ON 18 SEPTEMBER 2014
JUDGMENT
Application by the wife and deputy of an incapacitated person for the execution of a statutory Will — Whether to make provision for his daughter by a previous relationship with whom he had had limited contact — Relevance and application of the principle that the incapacitated person would wish to be remembered as having done ‘the right thing’ by their Will — Onset of mental incapacity not an opportunity for moral correction
§1 — FORMAT AND HEADINGS

§2 — INTRODUCTION

[1]This judgment is structured under the following headings: §1 — Format and Headings §2 — Introduction §3 — Parties §4 — Capacity §5 — Domicile §6 — Relevant History §7 — Mr Jones’ Estate §8 — Mr Jones’ Care & Other Living Costs §9 — Mr Jones’ Income §10 — Testamentary History §11 — Effect of Mr Jones Dying Intestate §12 — The Issues to be Resolved & Decisions to be Made §13 — Relevant Law §14 — Documentary Evidence §15 — Oral Evidence §16 — Best Interests Findings §17 — Summary & Conclusion §18 — Other Matters §2 — INTRODUCTION This is an application, under section 18(1)(i) of the Mental Capacity Act 2005 for authority to execute a statutory will on behalf of Mr Peter Jones (‘Mr Jones’).[2]The Applicants are Mr Jones’s joint and several deputies for property and affairs, namely his wife Susan Jones (‘Mrs Jones’) and Roy Mathias (‘Mr Mathias’) who is a solicitor. They were appointed as Mr Jones’s joint property and financial affairs deputies by District Judge SE Rogers on 12 August 2013.[3]There is also now an application notice dated 15 September 2014 before the court filed by Mr Jones’s daughter, Anne Dawson (‘Ms Dawson’), in which she seeks approval of a life-time gift to her from Mr Jones’s estate.[4]Ms Dawson is Mr Jones’s only child. She is the child of a former relationship and Mrs Jones is not her mother.[5]Mr Jones also has siblings, nephews and nieces [Family tree, Tab 1 page 27].[6]Mr Jones suffers from dementia. There is no dispute that he lacks testamentary capacity and capacity to make significant lifetime gifts.[7]He currently resides in a country in the Mediterranean having been taken there by Mrs Jones on 28 March 2014. The trip was initially presented as a holiday but Mrs Jones has no intention of returning him to the UK.[8]Before then he was residing in a care home in London, having been discharged there from hospital.

§3 — PARTIES

[9]The parties to the application are as follows: Susan Jones (‘Mrs Jones’) Joint Applicant Mr Jones’s wife and his joint deputy for property and affairs. Mrs Jones was separately represented from 3 September 2014 onwards, by Laytons Solicitors LLP, because of the possibility of a conflict between her interest as a beneficiary under the proposed Will and her position as a deputy. Mrs Jones was represented at the final hearing by Mr Ulick Staunton of counsel. Roy Mathias (‘Mr Mathias’) Joint Applicant Solicitor and the joint deputy for property and affairs of the person concerned. On 11 September 2014, I directed that Mr Mathias was at liberty to put forward his own proposals with regard to the statutory Will. Mr Mathias was represented at the final hearing by Mr Damian Falkowski of counsel. Peter Jones (‘Mr Jones’) First Respondent The person concerned (‘P’). Represented by the Official Solicitor as his litigation friend and solicitor and by his counsel Miss Ruth Hughes. Anne Dawson (‘Ms Dawson’) Second Respondent Daughter of Mr Jones. Represented by Mr Michael O’Sullivan of counsel.

§4 — CAPACITY

[10]Dr Nicholas Rollitt (consultant in older age medicine) completed the usual assessment of capacity form (COP3) on 10 October 2013.[11]He stated that Mr Jones had been suffering from dementia for at least two years [Tab 1 page 63 et seq; Tab 4 page 281].[12]Mr Jones’s lack of capacity to make a Will and a significant life-time gift were not in dispute.

§5 — DOMICILE

[13]Mr Jones lived in England for over 50 years before he was moved on 28 March 2014.[14]It is accepted that Mr Jones was domiciled in the United Kingdom before he lost capacity and was moved. He will therefore retain his English domicile of choice because he is now incapable of forming the necessary intention to change it.[15]If Mrs Jones intends to remain where she is then her domicile will change and inheritance tax will be chargeable on Mr Jones’s death in any event because spouse relief will not in practice be available.

§6 — RELEVANT HISTORY

[16]Mr Jones is 81 years old. He was born in the Mediterranean country to which he was recently moved. He has been married to Mrs Jones for over 40 years. Having lived together in London until recently, he now lives with her in her flat where she looks after him with the assistance of two carers. They have no children together.[17]Mr Jones has one daughter, Anne Dawson, from a previous marriage. Ms Dawson lives in Canada and is 56 years old.[18]Mr Jones and her mother separated when Ms Dawson was a child. Ms Dawson and her mother then went to live with another man in Canada.[19]Ms Dawson met her father briefly in London in around 1971 when she was about 13 years of age. Mrs Jones knows nothing of this.[20]In around 1981, when she was 23 years of age, Ms Dawson stayed in London with her father and Mrs Jones. Thereafter she did not see him again until this year but they have been in contact by telephone.

Ms Dawson’s circumstances

[21]Ms Dawson had a troubled relationship with her step-father and left home at the age of 16. She has led a somewhat chaotic life and has suffered from addiction and mental health problems. She has serious financial difficulties, has been made bankrupt and is in receipt of Canadian means-tested benefits.[22]One issue raised at the hearing was whether it would be in Mr Jones’s best interests for any life-time and legacy to his daughter to be protected by a trust structure.

§7 — MR JONES’ ESTATE

[23]An updated schedule of assets indicates that Mr Jones has: Land Matrimonial home £525,000 Rental property £885,000 Land in country of birth £150,000 Accounts Deputyship Account £75,086 Joint Account £112,044 Bank Account £50,932 Lichtenstein Account £211,131 Solicitors client account £440,991 Total £2,450,185.88[24]During the course of these proceedings Mr Jones’s Jersey assets have been repatriated to the United Kingdom by Order of this court.[25]Mr Jones’s one major liability is tax that he owes to HMRC which is in the process of being settled using the Lichtenstein Disclosure facility.[26]A recent report from Grant Thornton dated 9 September 2014 indicates that Mr Jones has now settled with HMRC and made payments on account of £273,000 leaving a balance due of £2,959. Mrs Jones owes £3,511.[27]Once accountancy fees and the estimated costs of these proceedings are added to the amount owing to HMRC, the Official Solicitor estimates that Mr Jones has an estate of around £2.3 million.[28]The rental property is worth approximately £885,000. If it is sold the CGT will be £228,420 and there will be costs of sale to deduct. In addition, the property requires work the cost of which may amount to about £27,000.[29]Mrs Jones wishes to construct a house on a plot of land in the Mediterranean, the cost of which will be around £120,000 plus the costs of installing a central heating system and an air conditioning system.[30]Mrs Jones herself has a property worth about £50,000 and net liquid funds of about £410,000.

§8 — MR JONES’ CARE AND OTHER LIVING COSTS

[31]Mr Jones’s condition is irreversible.[32]He will require a professionally delivered care plan for the rest of his life. The cost of the care is around £2,650 per month of which £1,000 is attributable to the cost of the carers. The costs of the care have been reimbursed to Mrs Jones and continue to be paid to her.[33]His annual outgoings are estimated to be £60-£70,000 pa once living expenses of £1,000pm are added in and less frequent expenses such as clothes, holidays and medical treatments.

§9 — MR JONES’ INCOME

[34]Mr Jones has a gross pension of £3,879.72 per annum and gross rental income of £17,520 making a total gross income of £21,399.72.[35]Because Mr and Mrs Jones appear to have moved to the Mediterranean on a permanent basis it would be possible and probably sensible to rent out the matrimonial home. This would generate further income of approximately £20,000 (gross) per annum.[36]In addition, Mr Jones has significant cash assets which can be invested to produce further income for him.[37]As a result of these income streams it is unlikely that Mr Jones’s estate will be significantly diminished by care costs in the immediate future.

§10 — TESTAMENTARY HISTORY

[38]Mr Jones is intestate.

§11 — EFFECT OF MR JONES DYING INTESTATE

[39]The Inheritance and Trustees’ Powers Act 2014 came into force on 1 October 2014. Section 1 of that Act amended Section 46 of the Administration of Estates Act 1925. Without a Will, the effect is that, following the statutory legacy of £250,000 plus personal chattels to Mrs Jones outright, Mrs Jones will receive half of the remainder of the estate absolutely and Ms Dawson the other half of the estate.[40]The devolution of Mr Jones’s land in the Mediterranean will not be affected by any statutory Will which the Court may authorise on behalf of Mr Jones.[41]Under the Mediterranean country’s laws of intestacy one half of Mr Jones’s land there would pass to Mrs Jones. Although Ms Dawson’s status as a legitimate heir under the Mediterranean rules is not entirely clear, it may (only may) be that part of the remainder of the estate there will pass to her, although this may be shared with Mr Jones’s siblings.

§12 — THE ISSUES TO BE RESOLVED AND DECISIONS TO BE MADE

[42]The Joint Applicants initially proposed a statutory Will which appointed them as executors and left Mr Jones’s estate entirely to Mrs Jones. No provision at all was made for Ms Dawson.[43]Subsequently the Joint Applicants proposed making provision of £50,000 for Ms Dawson with the remainder of the estate to Mrs Jones.[44]The Applicants then made separate submissions at the final hearing.[45]In the light of the evidence filed by Ms Dawson and the Official Solicitor’s attendance note of 10 September 2014, Mr Mathias submitted that a payment of £325,000 might be appropriate in the form of £100,000 by way of a lifetime gift and £225,000 to her by Will.[46]Mrs Jones’s position prior to the hearing remained that a modest sum of £50,000 was appropriate. However, in oral evidence, she changed this to £375,000. Mr Staunton and Mr Falkowski accept that she understood the question put to her when she suggested this revised figure of £375,000.[47]On Ms Dawson’s behalf, Mr O’Sullivan submitted that Court should provide for her in the following way:• A gift in her favour of the available nil-rate band amount, either by way of lifetime gift or legacy or a combination of the two.• A gift of one-half of the remainder of the estate subject to a flexible life interest in favour of Mrs Jones.[48]Mr O’Sullivan suggested that any provision for Ms Dawson needs to be generous enough to change her life and put her on a sound footing. Minimal or modest provision risks stripping her of her entitlement to benefits without being enough to provide her with a stable platform for the future. An immediate lifetime gift which ameliorates her very poor financial position would be tax efficient in that if Mr Jones survives for seven years from the date of the gift it will not count towards his cumulative total for inheritance tax purposes.[49]Mr O’Sullivan told me that if the Court considers it necessary, any provision for Ms Dawson could be made by way of trust although there are potential tax disadvantages to a trust for her in the event that Mrs Jones’s life interest is terminated partially or wholly in her lifetime.[50]In many respects the Official Solicitor agreed with the submissions made by Mr O’Sullivan on Ms Dawson’s behalf.[51]The Official Solicitor considered that the proposed provision of £50,000 for Ms Dawson was not in Mr Jones’s best interests because it did not provide sufficient funds for her.[52]For two principal reasons, it was in Mr Jones’s best interests that a statutory Will to be made on his behalf. Firstly, it would enable independent professional executors with experience in dealing with complicated multi-jurisdictional estates and with the Lichtenstein disclosure facility to be appointed. Secondly, it was in Mr Jones’s best interests that the intestacy provisions be amended. These provisions gave too much weight to Ms Dawson’s limited involvement in Mr Jones’s life and failed adequately to provide for Mrs Jones given their long marriage.[53]In the Official Solicitor’s view it would be in Mr Jones’s best interests to make provision of say £625,000 for Ms Dawson.[54]£100,000 should be provided by way of life-time gift. An immediate legacy of £225,000 should be included in the statutory Will. The remaining £300,000 should be left upon trust to pay the income to Mrs Jones until her interest in possession is terminated by lapse of time, death or the exercise of a non-fiduciary power of appointment by Ms Dawson after a period of no less than two years.[55]This will enable Mr Jones’s estate to take advantage of the spouse exemption (provided Mrs Jones does not become domiciled in the Mediterranean) and there would be no IHT to pay in respect of his death. The termination of Mrs Jones’s interest in possession would be a potentially exempt transfer which would be chargeable if she died within seven years of its termination. It might be possible to obtain life insurance to pay any IHT due as a result of Mrs Jones’s death.[56]The Official Solicitor considered that it was in Mr Jones’s best interests to use such a common structure in order to effectively mitigate IHT.[57]Miss Hughes made the important point which was that although ‘numerous different issues … have been raised in this application … at its core it is a simple division of Mr Jones’s estate between his spouse and his daughter’. One must decide the appropriate shares first and then identify the most efficient and appropriate ways of providing them with their share.

§13 — RELEVANT LAW

[58]The relevant statutory provisions and case law were set out in the position statements filed by counsel. Briefly:(a) Section 18 (1)(i) of the MCA 2005 confers on the Court of Protection jurisdiction to authorise the execution of a will on behalf of a person (“P”) who lacks capacity to make a Will personally.(b) The statutory Will jurisdiction does not simply allow the court to make such Will as might appear objectively reasonable. Subject to the limits imposed by the Inheritance (Provision for Family and Dependants) Act 1975, English law recognises testamentary freedom and the freedom not to make a Will.(c) Any decision to authorise or not to authorise a Will must be made in Mr Jones’s best interests.(d) There is no definition of ‘best interests’ in the Mental Capacity Act 2005. However, section 4 contains a checklist of matters for the decision-maker (in this case, the court) to consider.(e) The 2005 Act requires the court to undertake a structured decision-making process. The court must consider all relevant circumstances and in particular (so far as they are reasonably ascertainable): (i) the person’s past and present wishes and feelings (and, in particular, any relevant written statement made by them when they had capacity), (ii) the beliefs and values that would be likely to influence their decision if they had capacity, and (iii) the other factors that they would be likely to consider if they were able to do so.(f) If it is practicable and appropriate to consult them, the court must also take into account the views of the following persons as to Mr Jones’s best interests: (i) anyone named by him as someone to be consulted on the matter in question or on matters of that kind, (ii) anyone engaged in caring for him or interested in his welfare, (iii) any donee of a lasting power of attorney granted by him, and (iv) any deputy appointed for him by the court,(g) The importance of the relevant person’s wishes and feelings in the process of assessing best interests has been considered in a number of cases including Re S (Protected Persons) [2009] WTLR 315; Re P [2010] Ch 33 and Re M [2010] 3 All ER 682).(h) In Re M, Munby J made a number of points:(i) The 2005 Act lays down no hierarchy as between the various factors listed in section 4 which have to be borne in mind, beyond the overarching principle that what is determinative is the judicial evaluation of what is in P’s ‘best interests.’ (ii) The weight to be attached to the various factors will, inevitably, differ depending upon the individual circumstances of the particular case. (iii) In any given case there may be one or more features or factors which are of ‘magnetic importance’ in influencing or even determining the outcome. (iv) P’s wishes and feelings will always be a significant factor to which the court must pay close regard. (v) The weight to be attached to P’s wishes and feelings will always be case-specific and fact-specific. (vi) In considering the weight and importance to be attached to P’s wishes and feelings the court must have regard to all the relevant circumstances. These may include:• The degree of P’s incapacity;• The strength and consistency of the views expressed by P;• The possible impact on P of knowing that his wishes and feelings are not being given effect to;• The extent to which P’s wishes and feelings are, or are not, rational, sensible, responsible and pragmatically capable of implementation; and• The extent to which P’s wishes and feelings, if given effect, can properly be accommodated within the court’s overall assessment of what is in his best interests. (vii) It may be in P’s best interest to avoid post-death litigation; see Re D [2010] EWHC 2159 (Ch).

Being remembered for having done the right thing

[59]I received submissions on the correct approach to take in relation to the following judgments about the importance of being remembered for having done the right thing: (a) Lewison J gave the following guidance in Re P [2010] Ch 33 on best interests insofar as they relate to making a Will for someone:
‘There is one other aspect of the “best interests” test that I must consider. In deciding what provision should be made in a will to be executed on P’s behalf and which, ex hypothesi, will only have effect after he is dead, what are P’s best interests? Mr Boyle stressed the principle of adult autonomy; and said that P’s best interests would be served simply by giving effect to his wishes. That is, I think, part of the overall picture, and an important one at that. But what will live on after P’s death is his memory; and for many people it is in their best interests that they be remembered with affection by their family and as having done “the right thing” by their will. In my judgment the decision maker is entitled to take into account, in assessing what is in P’s best interests, how he will be remembered after his death.’
The facts (particular context) in Re P were not reported but the principle is that for ‘many’ — not all — people this is something which the judge is ‘entitled to take into account’. (b) The decision of Munby J (as he then was) in Re M, ITW v Z & Ors[2009] EWHC 2525 (COP) confirmed the importance to the relevant person of being remembered for ‘having done the right thing’ and so being remembered with affection by their family. (c) In the case of Re G(TJ) [2010] EWHC 3005 (COP), Morgan J did not consider this to be a useful approach. In an appropriate case, and within the court’s overall assessment of P’s best interests, the court should seek to identify and have regard to the balance sheet of factors which P himself would be likely to draw up if able to do so. The question what the testator would do himself if he had capacity remained a legitimate factor for the Court to consider when assessing best interests: ‘The best interests test involves identifying a number of relevant factors. The actual wishes of P can be a relevant factor: section 4(6)(a) says so. The beliefs and values which would be likely to influence P’s decision, if he had capacity to make the relevant decision, are a relevant factor: section 4(6)(b) says so. The other factors which P would be likely to consider, if he had the capacity to consider them, are a relevant factor: section 4(6)(c) says so. Accordingly, the balance sheet of factors which P would draw up, if he had capacity to make the decision, is a relevant factor for the court’s decision. Further, in most cases the court will be able to determine what decision it is likely that P would have made, if he had capacity. In such a case, in my judgment, P’s balance sheet of factors and P’s likely decision can be taken into account by the court. This involves an element of substituted judgment being taken into account, together with anything else which is relevant. However, it is absolutely clear that the ultimate test for the court is the test of best interests and not the test of substituted judgment. Nonetheless, the substituted judgment can be relevant and is not excluded from consideration. As Hoffmann LJ said in the Bland case, the substituted judgment can be subsumed within the concept of best interests. That appeared to be the view of the Law Commission also (at para 55).’ (d) In the case of Jones v Parkin (Re Meek) [2014] EWCOP 1, HHJ Hodge said: ‘In my judgment, what Mr Justice Lewison referred to as “the right thing” is to be judged from the perspective, not of any relatives or friends who may be competing for a share of the incapacitous person's testamentary bounty, but rather from the perspective of the well-informed, and disinterested, objective bystander. Nevertheless, “the right thing” is to be judged, as Baroness Hale's recent speech makes clear, by reference to the standards of the incapacitous person himself, and not by what the reasonable incapacitous person might be thought to think. Further, in my judgment, the concept of being remembered “as having done the right thing” still has relevance even if, because of the lack of testamentary capacity, the right thing has to be done for the testator by the Court of Protection.’ (e) Baroness Hale’s speech in Aintree University Hospitals NHS Foundation Trust (Respondent) v James (Appellant)[2013] UKSC 67 at para. 45 is important for the following key passage at para 45: ‘45. Finally, insofar as Sir Alan Ward and Arden LJ were suggesting that the test of the patient's wishes and feelings was an objective one, what the reasonable patient would think, again I respectfully disagree. The purpose of the best interests test is to consider matters from the patient's point of view. That is not to say that his wishes must prevail, any more than those of a fully capable patient must prevail. We cannot always have what we want. Nor will it always be possible to ascertain what an incapable patient's wishes are. Even if it is possible to determine what his views were in the past, they might well have changed in the light of the stresses and strains of his current predicament. In this case, the highest it could be put was, as counsel had agreed, that "It was likely that Mr James would want treatment up to the point where it became hopeless". But insofar as it is possible to ascertain the patient's wishes and feelings, his beliefs and values or the things which were important to him, it is those which should be taken into account because they are a component in making the choice which is right for him as an individual human being.’ (f) In the case of NT v FS and Othrs (Court of Protection, Case No. 1190748T), His Honour Judge Behrens observed at paragraph 8 that: ‘As Morgan J pointed out the making of the gift and/or the terms of the will are not being made by P but by the Court. Furthermore insofar as there is a dispute between family members the unsuccessful members are not likely to think that he had done the right thing. For my part I think there is force in Morgan J's views on the facts of this case with the result that I do not intend to place any weight on this factor.’ (g) Senior Judge Lush expressed doubts as to the approach in Re J(C) [2012] WTLR 121.[60]For myself, having considered these authorities, I take the view that they are not as incompatible as is sometimes implied. Each case turns on its own facts and a factor which is of magnetic importance in one case may be relatively insignificant in another superficially similar case. For many but not all people it is in their best interests that they be remembered with affection by their family as having done the right thing by their Will. This is something which the judge is ‘entitled to take into account’ — it is a relevant consideration — alongside the other factors specified in section 4.[61]It is perhaps noteworthy that in Re M, ITW v Z & Ors[2009] EWHC 2525 (COP), the President did not on the basis that it was somehow the right thing to do make provision in the statutory Will for a legacy for J, who was the one person to have maintained a relationship with M and who continued to visit and telephone her. In so deciding, a ‘particularly compelling feature’ was that J ‘would be gaining a benefit which M, while she had capacity, felt that he did not need and which, it would seem, she still thinks he does not need. How can it be in her best interests to go counter to such long-held views? The only proper answer, it seems to me, would be if it could be said that giving him a legacy was either an appropriate reward for what he is now doing for M or an inducement to him to do more for her; but neither, in my judgment, can be justified in the circumstances as they exist (at para. 57).’[62]The Act requires the decision-maker to consider the past and present wishes and feelings of the relevant person, the beliefs and values that would be likely to influence their decision if they had capacity and the other factors that he would be likely to consider if they were able to do so. In my view, where P with capacity has just made a will excluding Y and/or has recently expressed clear views that he dislikes Y, does not want to see Y and does not want Y to share in his estate, and P is then incapacitated by a stroke, in ordinary circumstances it would be inappropriate to make use of his incapacity to now make a Will in favour of Y simply because the decision-maker believes he ought to have done so.[63]Taking such an approach would run counter to testamentary freedom and the wishes, feelings, beliefs and values provisions of the Mental Capacity Act 2005 and lead to inconsistent and arbitrary outcomes. In the example just given, if P is not struck down by a stroke then — subject to the limits imposed by the Inheritance (Provision for Family and Dependants) Act 1975 — he is fully entitled to be as unappreciative of Y’s merits and needs as he wishes and Y gets nothing. If he is struck down by a stroke a third-party decision-maker can ‘correct’ his wish not to leave anything to Y (and his clear wish not to be remembered with any greater affection by Y than he felt for Y) by substituting their own view or society’s view as to what P ought rightfully to have done.[64]As Baroness Hale made clear in Aintree, the purpose of the best interests test is to consider matters from the particular individual’s point of view. Occasionally there may be circumstances such as those referred to by the President or the avoidance of post-death litigation which justify departing from a person’s clear past and present wishes and beliefs. However, in the ordinary case the Mental Capacity Act is not a vehicle for imposing on people views, wishes and feelings that clearly are contrary to those they held before losing capacity, do not hold now and would not hold if they regained capacity, however right those views may be, and however unworthy P’s views are according to most people’s standards.[65]The onset of mental incapacity is not an opportunity for moral correction.[66]That still leaves room, of course, for the case at the other end of the spectrum where the court authorises a statutory Will which makes good the omissions of P but does not seek to correct their considered acts and decisions. For various reasons all of us never quite get round to doing many of the things we know we ought to do. Making a Will may be one of them. Most people would wish to make a Will if they knew both that they were going to be incapacitated by a stroke tomorrow and the consequences of dying intestate or leaving a defective Will. They would seek to avoid the sometimes arbitrary nature of intestacy, the consequences of dying intestate on those dear to them, the resulting inconvenience and worry for their family, the possibility of family discord and avoidable litigation arising from a failure to make clear their intentions.[67]Thus, in the absence of clear evidence to the contrary, one is entitled to assume that had P given proper thought to their pending incapacity and intestacy he or she would have wanted to put their house in order and make a Will. They would want to do the right thing and not to leave family members with such unintended consequences and problems. Hence, it seems to me, the case law emphasises that adult autonomy is not the only consideration and that in many cases and for many people it is in their best interests that they be remembered with affection by their family and as having done ‘the right thing’ by a Will.[68]That is a long-winded way of saying that in the absence of evidence to the contrary most people want to do the right thing by their family and loved ones and a judge is entitled to take that view, in the absence of evidence to the contrary and any relevant legal considerations.[69]I have taken the time to set out the view I have taken because it was in issue and there was considerable evidence that Mr Jones often did what many people would regard as the ‘wrong thing’ in respect of his estate. He secreted his money abroad, did not pay his taxes, did not provide for his daughter and did not make a Will providing for his wife’s future despite having 40 years to do so and being advised by a friend of the need.[70]At one stage I thought that there might have been a difference of opinion or emphasis as to what is meant by the phrase ‘substituted judgement’.[71]‘Substituted judgement’ is a principle which holds that surrogate decisions should be made by establishing as accurately as possible the decision which the incapacitated person would have made for themselves if they had capacity. Section 4 states that it is one of the things for the judge to consider.[72]The Law Commission argued that ‘best interests’ on the one hand and ‘substituted judgment’ on the other were not in fact mutually exclusive. It favoured a ‘best interests’ criterion which contained a strong element of ‘substituted judgment’ (Law Com No 231, para 3.25).[73]A main reason for rejecting a pure substituted judgement test was not that the views, beliefs and values of an incapacitated person are unimportant but that they are important (Law Com No 231, para 3.29):
‘One of the failings of a pure ‘substituted judgment’ model is the unhelpful idea that a person who cannot make a decision should be treated as if his or her capacity were perfect and unimpaired, and as if present emotions need not also be considered.’
[74]One must take into account and give weight to the person’s present wishes and feelings, and what they now view as important, and not just the values and beliefs which they held when they had capacity, even if more objective.[75]Furthermore, as the Commission noted when rejecting a pure substituted judgment approach, if a person has never had capacity then ‘substituted judgment’ is impossible and there is no viable alternative to a best interests approach.

§14 — DOCUMENTARY EVIDENCE

[76]The documentary evidence comprised a bundle of almost 500 pages which included capacity evidence, witness statements, the attendance note of the Official Solicitor, legal Advice in relation to property in the Mediterranean, a tax assessment statement of account, bank account information and an opinion and note from counsel regarding tax liability.

Philip’s evidence

[77]Mr Jones’s brother Philip provided a witness statement. He states at paragraph 11 that Mr Jones told him in the past that he intended to include both Ms Dawson and Mrs Jones in a Will. I accept his statement.[78]I was informed that at no point did Mrs Jones say that Philip was required for cross-examination. In those circumstances it would be wrong to reduce the weight of his statement on the ground that he did not give oral evidence.

§15 — ORAL EVIDENCE

[79]Mrs Jones made an application to cross-examine Ms Dawson via video link from Canada because her factual evidence was disputed.[80]I heard oral evidence from Mrs Jones, Ms Dawson, Mrs Emily Holmes (a close friend of Mrs Jones) and Mr Edward Holmes (the husband of Emily Holmes), followed by oral submissions from counsel.[81]The Holmes were honest witnesses but their evidence did not take matters very far. It merely established that there was one conversation about making a Will and that Mr Jones had taken offence.[82]I did not find Mrs Jones always to be a convincing witness. I thought that some of her evidence was contradictory, inconsistent or evasive. At one stage she seemed to deny that it had been her application to exclude Ms Dawson from the Will. Mr Mathias’s counsel told me that Mrs Jones understood the nature of the application and at all material times was assisted by her nephew in the Mediterranean who is a judge.[83]In contrast, I was impressed by Ms Dawson’s sincerity when she gave evidence by videolink. The Official Solicitor also agreed that she came across as an honest witness.

§16 — BEST INTERESTS FINDINGS

[84]I make the following findings in relation to matters affecting Mr Jones’s best interests:

Participation of Mr Jones in the decision-making

[85]So far as reasonably practicable, Mr Jones has been permitted and encouraged to participate as fully as possible in the decision-making process. He has had opportunities to express his wishes and preferences and has done so.

Whether a recovery of capacity is likely

[86]I find that it is unlikely that Mr Jones will recover testamentary capacity or capacity to make decisions about significant life-time gifts. The relevant decisions must be made for him now, by me, in his best interests.

Mr Jones’s past wishes and feelings

[87]Looking at the past, when he had capacity, Mr Jones was a man from a traditional mould who found it very difficult to express feelings of love or affection.[88]He was also a very guarded and private man who said little to nothing about his financial affairs and plans.[89]His wife asked me originally to make no provision for Ms Dawson and then only limited provision. This was on the ground that his failure to see his daughter over many years compelled the conclusion that his wishes and feelings towards her, and the value he placed on their relationship, were of little or no significance. She requires me therefore to consider the quality and significance of his relationship with his daughter.[90]I am satisfied on the evidence that Ms Dawson has always loved her father and that she had a close and loving relationship with him until they were separated. Her mother and her mother’s new partner then tried to prevent her from having contact with him. After 1983, the absence of visits by her is explained by her sensitivity, fragile mental health and financial circumstances, and by her father’s unapproachability, rather than by a lack of interest on her part.[91]Ms Dawson impressed me as a sensitive, timid, person who found her father rather intimidating. To use Mrs Jones’s words, he was ‘old-fashioned and authoritarian’; he was not an approachable man. Quite frequently she would telephone him to wish him happy birthday or on New Year’s Day. However, she was too embarrassed by her circumstances to confide in him her financial troubles and eventual bankruptcy, her addiction and mental health problems and her need for his support. She wanted him to think well of her. She did not want to risk the hurt that he would view her as a failure:
‘Even though my dad may have paid for expenses if I let him, I did not want him to know I had no money and could not pay for myself’
. She did not tell him of her prescription drug problem. He was not the type of man you tell that to: ‘I’d never tell my father that I was taking drugs … No way. It’s something you don’t do’.[92]Looked at from Mr Jones’s perspective, I find that his feelings for his daughter were consistent but his relationship with her was ambiguous.[93]On the one hand, I am satisfied that he loved his daughter in his own way but, as Mrs Jones said, ‘he never [really] knew how to love a child’. I accept that he told his brother that he intended to include both his wife and his daughter in a Will. I also accept his daughter’s evidence that when she went to England in 1983 with a passport in the name of Dawson he told her that she would be taken care of and not to worry. If, as seems likely, he knew or suspected from her speech or demeanour that sometimes she was under the influence of alcohol or drugs it did not lead him to break off all contact with her or to refuse her calls. I do not accept that he refused to talk to her by telephone and would keep their conversations short. Similarly, therefore, I reject his wife’s oral evidence that he would now ‘be happy’ not to help his daughter if he knew of her present circumstances ‘because she takes drugs and probably spends all her money on drugs, that’s probably why she hasn’t got any money’.[94]On the other hand, I accept that following his daughter’s visit to London in 1983 Mr Jones: a) Told his daughter that he could not visit her because of his bad back which prevented him from making the journey and that this was an excuse. His record of taking holidays abroad with his wife demonstrates that he was able to fly. He chose or decided not to visit Ms Dawson in Canada over three decades. I say ‘chose or decided’ because it is possible that he wished to go but decided that his matrimonial circumstances made this too awkward. As to this possibility, I accept that Ms Dawson met her father briefly in London when she was about 13 years old, in around 1971, and he did not inform Mrs Jones of this. b) Rarely telephoned his daughter of his own accord; generally it was she who initiated contact. c) Might not speak with his daughter by telephone for periods as long as two years (not five or 10 years; account of Ms Dawson preferred to that of Mrs Jones). d) Never sent his daughter any money (but he did not know her circumstances). e) Did not arrange to pay for her to travel to England to visit him (but, again, he did not know her circumstances). f) Did not exchange birthday cards or Christmas cards (but sometimes they exchanged seasonal good wishes by telephone).[95]Having been required by Mrs Jones to state the facts of his relationship with his daughter and to place a value on it I am bound to put these observations in their proper context.[96]If her argument is that his wishes and feelings about who should receive what proportion of his estate may be inferred from his behaviour towards the person in question then the context is that I find that his behaviour towards his wife was also lacking in delicacy: a) Mr and Mrs Jones’s marriage was an unhappy one as she herself told me. b) On occasion he was violent and treated her quite badly. c) She considered leaving her husband. d) Her husband was depressed at times. e) He did not discuss his financial affairs with her. f) He did not make a Will in her favour so as to secure her financial security in the future. His failure to make a Will provided very well for Ms Dawson’s future needs but not for his wife’s.[97]Until his present illness the evidence is that Mr Jones was overly-preoccupied with his own financial interests. He demonstrated little, certainly insufficient, consideration for the financial position and needs both of his wife and daughter. He appears to have had a limited interest in other people’s circumstances, feelings and needs and to have been unable to form reciprocal relationships.[98]I give the fact that Mr Jones did not discuss his daughter with Mrs Holmes no weight. After all, nor did he discuss his marriage with her but that does not mean that that relationship had no significance. Indeed, he did not discuss any personal matters with her.[99]It is extremely unfortunate that I was required to make findings about the weight to be attached to Mr Jones’s relationships.

Mr Jones’s past beliefs and values

[100]When he had capacity Mr Jones was advised to make a Will on at least one occasion.[101]Mr Jones liked people to ‘mind their own business’ (I accept Mrs Holmes’s description of him as a ‘very private closed man’ who did not discuss his business with others).[102]That is not surprising because he moved significant sums of money abroad in order to avoid paying taxes which demonstrates some legal knowledge of tax regimes. He was financially astute.[103]Grant Thornton have also been acting on his wife’s behalf in her own right in respect of money placed abroad.[104]Despite being advised of the importance of making a Will, Mr Jones chose not to make one providing for his wife over a period of more than 40 years and never discussed making one with her. Nor did he specifically discuss making a Will with his daughter or what she could expect to receive when he died.[105]Given that he was financially very ‘astute’ and had at least one conversation about the importance of Wills I find it unlikely that he simply assumed that his wife would inherit his whole (declared) estate on death. He was of course hiding money abroad unlawfully and he placed some funds in joint accounts. It may be that he did not envisage some of his estate passing by Will and or it being distributed and taxed according to the laws of England and Wales.[106]It is likely that he wished to retain control and that his reasons for not making a will, and not providing his wife and daughter with greater financial independence and security, reflected his need to be in control and to control. He was, to use his wife’s words, ‘old-fashioned and authoritarian’. According to Mrs Jones, he never mentioned leaving any of his estate to his daughter in a Will, ‘not because he had made up his mind but because of the sort of man he was, i.e. old fashioned and authoritarian. He seemed to perceive it as some kind of a threat to his power if he made a Will’. He liked to be in complete control of financial affairs and to be in control of family relationships.[107]On the available evidence and the balance of probabilities, again I find that Mr Jones’s wishes and feelings mainly centred on himself and until his present illness he was overly preoccupied with his own financial interests. He demonstrated little, certainly insufficient, consideration for the financial position and needs both of his wife or daughter. He wished to retain control of his estate and financial affairs. Although he referred to his wife getting it all and being a millionaire, and to his daughter being provided for, he chose not to make a Will for the time being.[108]The fact that Mr Jones did not make a Will does not demonstrate in my view that he wished to limit his wife’s inheritance to what she would receive under intestacy or by way of application under the Inheritance (Provision for Family and Dependants) Act 1975. He provided her with a good standard of living over many decades, paid all outgoings and also gave her a weekly allowance for her own use. The couple took regular holidays abroad. In due course I believe that his beliefs, values and wishes were such that it is likely that he intended to make arrangements of whatever kind to ensure that she received the greater part of his estate. At the same time I accept that his beliefs and values included making reasonable provision for his daughter in his Will, in due course.

Mr Jones’s present wishes, feelings, beliefs and values

[109]There is evidence that Mr Jones’s beliefs, wishes and feelings have changed as his life draws towards a close following the onset of illness and a period of severe depression. He is no longer in control of his finances and self-care and this has been extremely distressing for him. He has slowly and painfully had to adjust to this new reality of relative powerlessness and that what he has gathered will pass to others sooner rather than later.[110]On 10 September 2014, Ms Judith Bartram (Office of the Official Solicitor) met with Mr Jones in the Mediterranean. Her attendance note is at page 271A.[111]I accept that Mr Jones was clearly confused during parts of their meeting. Some of his statements were contradictory and his level of understanding varied markedly. At times he did not understand who his wife was and he did not notice his nephew (although he was not a nephew by blood).[112]However, I do not accept that his positive and animated statements about his daughter on that occasion carry little or no weight as an indication of his wishes and feelings. He perked up at mention of her name and was upset that they had lost touch. He said that his daughter had gone away and he could not reach her. When Ms Bartram ‘asked if he wanted to see her? He was immediate in his response and said “of course, she is my daughter”.” I asked if he could tell me something about her and he said that he did not know where she was. I said I thought she lived a long distance away in another country. Mr Jones said “maybe” and I said I thought it was Canada? He seemed to recognise this but said he did not know why she had left and he started to get upset. He said he did not know where she was. I said if Anne wanted to get in touch would he like that and he said yes. I said I thought she did want to get in touch and I would pass on the message. He said he would like that.’[113]He seemed temporarily more lucid at this point and identified the woman who had been with him as his wife. ‘I asked about his daughter and this time Mr Jones gave me her name without prompting and said “my daughter, Anne”. I asked if he would want to leave her any money and he said “I do not know if she needs money, I do not see her”. We had the same conversation and I asked if he wanted to see her and he confirmed yes he did. I explained that she lived a long way away and I thought she did want to see him. I said that hopefully this could be arranged. I asked if he would want to leave her any money. He said “she will come and I will ask her then” and I said what would he ask her and he said he would ask if she needs money. I said if she needed money would he help her he said “of course, she is my daughter”.’[114]Ms Bartram stated that, ‘When speaking in English to me he clearly remembered Anne and was animated whilst discussing her. He was not able to spontaneously remember her name even though it had been mentioned earlier in the conversation. However, he was not merely agreeing with information fed to him as he did not confirm the incorrect names I gave him and immediately recognised and perked up at the mention of the name Anne. Later in the conversation he then spontaneously mentioned her name. He was upset that they had lost touch and appeared genuine and consistent in expressing a wish to see her, he seemed happy and reassured when I told him there was a hope that this could be organised soon. He expressed a clear wish that he wanted to discuss matters with her to see if she needed money and was effusive as to both contact and provision with the explanation “of course, she is my daughter”. Mr Jones was fairly indifferent about Mrs Jones but this is perhaps explained by the fact that during our conversation he was considering a time in England where he clearly thought she spent much of the time away from him in the Mediterranean. He was not taking into account the current amount of time Mrs Jones spends with him and caring for him in his answers. It is clear that, although the apartment is small, Mr Jones is well looked after and he was very smartly dressed and looked clean and well.’[115]It would be sentimental to assume that this awakening is akin to that of Silas Marner (‘he could have only said that the child was come instead of the gold — that the gold had turned into the child’) but there is there, I think, a clear and genuine affection and concern for his daughter and her well-being which previously was not clearly expressed.[116]Mr Matthias visited Mr Jones in June 2014 when it was much more difficult to discern reliable wishes and feelings and I give that interview little weight.

The other factors Mr Jones would be likely to consider

[117]Mr Jones’s future medical and care needs are unknown but likely to increase with age. If Mrs Jones predeceases him it is not clear what his care costs will be. He would be likely to consider this factor if he still had capacity.[118]The court has sought to ensure the ‘repatriation’ of Mr Jones’s estate and that whatever taxes are due in such circumstances are paid. He would wish any arrangements made by me in relation to life-time gifts and testamentary dispositions to be as tax-efficient as possible. That is clearly evidenced by the lengths to which he has gone over many years to evade paying taxes.[119]Given that his estate is now in England and Wales and declared, it is more likely that he would consider the advantages of having a Will and legitimate estate planning if he was fully aware of the changed financial circumstances and his incapacity and failing health. He no longer has control of financial planning. If he knew that legitimate arrangements could no longer be postponed in relation to his estate it is improbable that he would not include his daughter among the beneficiaries and simply leave her to suffer in her present situation. The receipt of a significant sum would have a life-changing effect for her and no significant effect on his well-being or that of his wife. She is on benefits. She has been bankrupt in the past. She has poor mental and physical health.[120]The estate is a substantial one. It is large enough to enable fair and reasonable provision to be made for both Mrs Jones and Ms Dawson as the testator’s only daughter.

The views of other persons

[121]The views of Mrs Jones and Ms Dawson have been summarised.

Other relevant circumstances

[122]Should Mr Jones die intestate his daughter would receive substantial provision.[123]Ms Dawson fairly acknowledged through her counsel that there are serious concerns about her ability to manage money and that this is a live issue. She has been bankrupt and Dr Grey stated that, ‘As for the possible inheritance I am not able so say how she would react if she had access to a large sum of money’. Her plan to open a tea room that opens at 9am and closes at brunch has attractions, and socially may be valuable, but is not a thought through business proposition.[124]I do not give any weight to the fact that Ms Dawson originally returned the court papers which were served on her. She was bereaved and unaware of her rights and it does not help me with the best interests issue.

§17 — Summary and conclusion

[125]It is in Mr Jones’s best interests for a statutory Will to be made on his behalf.[126]It is in his best interests to appoint neutral and independent professional executors.[127]I find that prior to his illness he was consumed by his business and financial interests. He intended that his wife and daughter would both benefit from his estate in due course but preferred for as long as he was able to be in control of his money and relationships. I find myself broadly in agreement with the Official Solicitor submission that his wife’s share of the estate should be around 75% and his daughter’s 25%. This division reflects the length of his marriage, the standard of living when he provided to his wife over many years, the time spent in each other’s company and similar considerations. It also reflects the fact that I have accepted the evidence that he always intended to provide for his only child in due course and that their relationship was and is a meaningful one. If either Mrs Jones or Ms Dawson should predecease Mr Jones the other should take the estate absolutely.[128]If Mr Jones had been wholly unable to express his current wishes and feelings then, based solely on his past wishes, beliefs and feelings, I would not make any immediate lifetime provision for his daughter. There is no history of life-time giving to her and he preferred to retain control of all of his assets. However, those circumstances have changed. The interview with Ms Bartram evidences a wish to help his daughter if she is in need of help, she is in urgent need of help, his funds have been repatriated, he can no longer be in control of his money and legitimate arrangements must now be made by others in relation to his estate.[129]Affordability is always a ‘magnetic factor’ in that it is essential that sufficient money will be available to Mr Jones to ensure that he enjoys the standard of living that he has worked for and is used to, and receives good quality care and treatment, during the remainder of his life.[130]Subject to that, his daughter is not far off 60 years of age and her needs are pressing and immediate. I believe that if he was fully aware of her living conditions he would now wish to do what is necessary to ensure that she no longer has to live in what is a dreadful slum. It is in his best interests therefore that his only daughter has the benefit and security of decent accommodation, that he does what is necessary to help her now and that she is in a financial position which allows her the opportunity to consolidate their relationship.[131]His daughter’s primary need is accommodation. This will need to be placed in trust for the reasons already set out. Her father will then have the benefit of knowing that she is secure in comfortable accommodation whatever her employment, treatment and care status in the future.[132]I agree with the Official Solicitor that an overall provision of around £625,000 for Ms Dawson in the form of a lifetime gift followed by a legacy is appropriate. However, I have a preference for a larger lifetime gift now to enable the purchase of a home for her outside the city where she lives. I understand that an owner-occupied home may be an exempt asset for the purposes of her state disability payments and that she can also receive up to $6,000 of annual non-disability-related income.[133]I would ask the parties to consider and seek to agree the most suitable terms for a lifetime gift that provides for Ms Dawson’s immediate accommodation needs together with a Will which makes correspondingly reduced provision and leaves her overall with approximately one-quarter of the existing estate.

§18 — OTHER MATTERS

[134]I agree that there is an issue to be resolved concerning the current deputyship arrangements.[135]I agree that there may be issues to consider concerning the costs of and incidental to these proceedings.[136]Following the hearing I received a witness statement on behalf of Mrs Jones from Ms Catherine Livingston dated 30 October 2014. I assume this was copied to the parties. I have not received any submissions in respect of it. I have not taken the statement into account in coming to my decision and do not propose to do so unless the parties agree that I should or there is a formal application for me to take it into account.[137]It is usually in an incapacitated person's best interests that their spouse and daughter enjoy a cordial relationship. I hope that the remaining matters can be quickly agreed and that the family can put aside any differences that have emerged in these proceedings. District Judge Eldergill ADDENDUM

District Judge Eldergill

[138]A holding Will was made effecting the terms of the judgment in broad terms when Mr Jones was taken ill and there was concern that he might die before the necessary Canadian trust and tax advice could be obtained and all outstanding matters agreed. Fortunately, he recovered.[139]The precise terms of the final order implementing the judgment in full were then agreed between the parties and approved by the court.[140]Ms Dawson was to receive her entitlement through a trust structure and her father’s deputy was authorised to execute a trust for her benefit (‘the Ms Dawson Trust’) and to pay £200,000 to the trustees.[141]The deputy was further authorised to: a) execute a statutory Will leaving a legacy of £650,000 (less the amount of any lifetime gift made in accordance with the order) to the trustees of the Ms Dawson Trust with the residue to Mrs Jones. b) pay a sum not exceeding £200,000 to Mrs Jones for the purpose of permitting her to build and furnish a property on Mr Jones’s land in the Mediterranean for his occupation, such funds to be held by her in a separate bank account on trust for Mr Jones absolutely.[142]At the end of their reporting year, the appointment of Mr Mathias and Mrs Jones as deputies for Mr Jones was to cease and a professional deputy appointed in their place.[143]The parties’ costs were to be subject to detailed assessment on the standard basis and paid out of Mr Jones’s estate.