NT v FS & ors [2013] EWHC 684 (CP)

Analysis

F is a 74-year-old retired rugby player with assets of £3m and was diagnosed with Alzheimer’s and dementia in 2006. The applicant (NT), who is F’s deputy, brought this application for a statutory will to be executed on behalf of F and for a statutory gift of £50,000 to be made to F’s 95-year-old mother (T). The respondents were the potential beneficiaries of such will. The statutory gift was uncontroversial, however the statutory will provisions were contested. Judge Behrens, in determining what terms would be in F’s best interests, had regard to previous authorities on this point and applied an objective test that considered all of the relevant circumstances of the case while giving consideration to what F’s wishes and feelings might be. Judge Behrens did not feel that it was appropriate to attach any weight to F having ‘done the right thing’. NT was given permission to submit his evidence in writing only.

In 1976 F had a child (K) with his then partner of 17 years (C). The nature and closeness of F’s relationship with K was a point of contention with F’s siblings (I, Q and B) during these proceedings. Evidence was submitted to suggest that K and F did not have a usual ‘father/son’ relationship however there was stronger evidence submitted (in particular by NT) to evidence that F and K did enjoy this type of relationship. K and F had become closer since the 2006 diagnosis but prior to that there had always been contact and F had regularly visited K and his wife and two children. F made his money by buying and renovating properties. Three properties constituted the bulk of F’s assets. C, I, Q and L (who was F’s half uncle but their relationship was more akin to that of siblings) provided a lot of assistance in the early days of F’s property acquisitions and they did so without any form of payment, thus contributing to his future wealth.

F is unmarried and in a relationship of 28 years with his current partner (N). F has lived with N for 24 years at her property (a house that she co-owns with her children worth in the region of £160,000). N paid the bulk of the outgoings while she was working, prior to her retirement, as a hairdresser. F has contributed more significantly since. F has historically been secretive about is financial affairs and it was only in 2006 that the level of his assets became apparent. From 2006 onwards N has become F’s carer. F has significant capital assets but an income deficit of circa £23,000pa. His life expectancy is 12-14 years.

T has also lost capacity and lives in residential care. F and T’s relationship had always been a close one and F continues to visit her with N. T has limited income and capital and has been financially supported by F who has provided funding for her care. All parties accepted that F would want to provide for T.

F prepared a will for himself sometime between 1984-1986 but this was not properly executed. This will made cash gifts to the various respondents and left the residue to T. It was argued that the terms of this will were of magnetic importance in determining the terms of the statutory will. The various parties put forward their suggestions on the appropriate spilt of F’s estate. After consideration of the written evidence NT, N and K amended their initial suggestions.

Held:

1. (1) The court has to make a value judgment giving effect to the paramount instruction that the decision must be made in F’s best interests. It must consider all relevant matters including the matters in ss4(6) and (7) of the Mental Capacity Act 2005.
2. (2) The terms of the 1986 will were not helpful. The values of the properties were quite different then and now and there had since been some very significant changes in F’s relationships with several of the respondents. As such, the invalid will was not of magnetic importance and was not a starting point to determine what terms would be in F’s best interests.
3. (3) It was not possible to determine the value of F’s estate at his future death (various deductions for capital taxes, the costs of the hearing and F’s income shortfall had to be made and these weren’t fixed). The divisions were based on an estate of £1.5m. If this was wrong then a further application would need to be made.
4. (4) F had a moral obligation to provide for N. Any claim for provision under statue should not be considered here. The views of the Official Solicitor, N and K were accepted and 35% of F’s residuary estate will pass to N.
5. (5) K had a strong claim for provision, 43% of F’s residuary estate should pass to K. Any award to C shall come out of K’s share. The remaining 22% to be given to I, Q, B and L. I, B and Q to receive 6.25% each and L to receive 32.5% on account of the significant contributions that they had made to F’s wealth pre-2006.
6. (6) The gift of £50,000 to T was granted and to be made within three months of the order. Combined with T’s own assets this would provide for T’s needs for four years. In the event that T survives F, T’s income shortfall would be covered by an annuity of £20,000 payable from the 22% share left to I, Q, B and L.

JUDGMENT JUDGE BEHRENS: 1. Introduction [1] This is an application by NT (the deputy) for authority to execute a statutory will on behalf of FS (F). There is no dispute that F lacks the capacity to make such a will. There is equally no dispute that it is in his best interests that such a …

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