Re Jones [2014] EWCOP 59

Analysis

Mr Jones suffered from dementia and lacked testamentary capacity and capacity to make significant lifetime gifts. He had an estate of approximately £2.3m and was intestate. The effect of his dying intestate would be that, following the statutory legacy of £250,000 plus personal chattels to his wife, Mrs Jones, outright, Mrs Jones would receive half of the remainder of the estate absolutely and his daughter from a previous relationship, Ms Dawson, would receive the other half of the estate.

Ms Dawson’s mother and Mr Jones had separated when she was a child whereupon Ms Dawson and her mother went to live in Canada with another man. Ms Dawson had a troubled relationship with her step-father, leaving home at 16. She led a somewhat chaotic life and had suffered from addiction and mental health problems. She had serious financial difficulties, had been made bankrupt and was in receipt of Canadian means tested benefits. Ms Dawson had met Mr Jones in London when she was 13 and stayed with him and Mrs Jones when she was 23. Ms Dawson would telephone Mr Jones frequently to wish him happy birthday or on New Year’s Day. However, she was too embarrassed by her circumstances to confide in Mr Jones about her financial troubles and eventual bankruptcy, her addiction and mental health problems and her need for his support.

Mrs Jones and a solicitor (Mr Mathias), who were the joint and several deputies for property and affairs of Mr Jones, applied for authority to execute a statutory will on his behalf pursuant to s18(1)(i) MCA 2005. They initially proposed a statutory will appointing them as executors and leaving Mr Jones’ estate to Mrs Jones alone. They subsequently proposed making provision for Ms Dawson of £50,000 with the remainder to Mrs Jones. Mr Mathias subsequently submitted that a payment of £325,000 to Ms Dawson might be appropriate instead. Further, in oral evidence, Mrs Jones changed her position as to the sum being appropriate for Ms Dawson from £50,000 to £375,000.

Ms Dawson’s position was that the court should provide for her by way of a gift in her favour of the nil-rate band amount, either by lifetime gift or legacy or a combination of the two and a gift of one-half of the remainder of the estate subject to a flexible life interest in favour of Mrs Jones. The Official Solicitor, as litigation friend for Mr Jones, considered the proposed provision of £50,000 for Ms Dawson as not being in Mr Jones’ best interests as it did not provide sufficient funds for her. The Official Solicitor’s view was that it would be in Mr Jones’ best interests to make provision of circa £650,000 for Ms Dawson, partly by lifetime gift and partly by legacy.

An attendance note of a recent meeting between an employee of the Official Solicitor and Mr Jones reflected that Mr Jones genuinely and consistently expressed a wish to see Ms Dawson. When asked if he would want to leave her any money, Mr Jones stated that he did not know if she needed any money but that if she came to see him he would ask her. Further, when asked if he would help her if she needed money, Mr Jones replied ‘of course, she is my daughter’.

Held

1. 1) Section 18(1)(i) MCA 2005 conferred on the Court of Protection jurisdiction to authorise the execution of a will on behalf of a person, such as Mr Jones, who lacked capacity to make a will personally. Any decision to authorise or not to authorise a will must be made in Mr Jones’ best interests. Section 4 MCA 2005 contained a checklist of matters for the court to consider.
2. 2) The court was entitled to take into account as a relevant consideration that for many 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. Further, 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.
3. 3) The purpose of the best interests test is to consider matters from the particular individual’s point of view. There may be circumstances which justify departing from a person’s clear past and present wishes and beliefs. However in the ordinary case the MCA 2005 is not a vehicle for imposing on people views, wishes and feelings that are clearly 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 the person’s views are according to most people’s standards.
4. 4) The court 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.
5. 5) It being unlikely that Mr Jones would ever recover testamentary capacity or capacity to make decisions about lifetime gifts, the relevant decisions should be made now, by the court, in his best interests.
6. 6) Mr Jones found it difficult to express feelings of love and emotion and was a very guarded and private man who said little to nothing about his financial affairs. His feelings focused mainly on himself and until his illness he was overly preoccupied with his own financial interests and demonstrated little consideration for the financial position and needs of Mrs Jones and Ms Dawson. It was likely that his reasons for not making a will reflected his need to be in control.
7. 7) The fact that he did not make a will did not demonstrate that he wished to limit Mrs Jones’ inheritance to what she would receive under intestacy or by 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 gave her a weekly allowance. The court believed that in due course, his beliefs, values and wishes were such that he intended to make arrangements of whatever kind to ensure that she received the greater part of his estate. At the same time the court accepted that his beliefs and values included making reasonable provision for Ms Dawson in his will in due course. His feelings to Ms Dawson were consistent but his relationship with her was ambiguous. However the court was satisfied that he loved her in his own way and intended to include both her and Mrs Jones in a will.
8. 8) There was evidence Mr Jones’ wishes had changed following the onset of his illness. There was a clear and genuine affection and concern for Ms Dawson and her well-being which previously had not been clearly expressed.
9. 9) The court would also take into account Mr Jones’ future medical care and needs, the repatriation of his estate and that whatever taxes were due in the circumstances were paid. Mr Jones would wish any arrangements made to be as tax-efficient as possible, evidenced by the lengths to which he had gone over many years to evade paying tax.
10. 10) Accordingly, Mrs Jones’ share of the estate should be around 75% and Ms Dawson’s share 25%. This reflected the length of his marriage, standard of living which he provided Mrs Jones with and time spent in each other’s company. It also reflected that he always intended to provide for Ms Dawson in due course and that their relationship was a meaningful one.
11. 11) The court believed that if Mr Jones was aware of Ms Dawson’s living conditions he would now wish to do what was necessary to ensure they were changed. It was therefore in his best interests that Ms Dawson has the benefit and security of decent accommodation provided for by way of a lifetime gift.

12) Accordingly the court invited the parties to consider and seek to agree the most suitable terms for a lifetime gift that provided for Ms Dawson’s immediate accommodation needs together with a will with a correspondingly reduced provision leaving her overall with approximately one-quarter and Mrs Jones with approximately 75% of the existing estate

DISTRICT JUDGE ELDERGIL: 1. Format and headings [1] This judgment is structured under the following headings: 1. Format and headings page 664 2. Introduction page 665 3. Parties page 665 4. Capacity page 666 5. Domicile page 666 6. Relevant history page 666 7. Mr Jones’ estate page 666 8. Mr Jones’ care and other …

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