Oversight, not omission

Statutory will applications offer a fascinating opportunity to consider both the fine detail and considered consequences, of an otherwise ordinary transaction.

The court has to consider the terms of a will from the point of view of every person who may be touched by its terms, while focussing ultimately on the best interests of the testator; a person who can
no longer accurately recall or convey their thoughts and feelings.

In September 2014 District Judge Eldergill was presented with a substantial difference of opinion as to what was in the best interests of the testator, when hearing Jones, Re [2014] EWCOP 59. The case highlights the delicate line a court must walk in considering a statutory will application, and the competing claims of the incapacitated individual's family.

The statutory will application concerned the generous estate of Mr Jones, who held land and investments totalling nearly £2.5m across England and Wales, the Mediterranean, and investments in Lichtenstein. The application included evidence from Mr Jones's wife of 40 years, and his daughter from a previous marriage, Ms Dawson.

The judge noted that Mr Jones's daughter had led a 'somewhat chaotic life' and that her 'sensitivity, fragile mental health and financial circumstances' explained her lack of visits to her father, together with her father's 'old-fashioned and authoritarian' attitude.

Mr Jones's behaviour towards his wife was 'also lacking in delicacy' and included violence, depression, financial control, an unhappy marriage and depression.

It was perhaps not surprising then that the court was required to consider whether Mr Jones would have wanted to be remembered for doing the right thing by his family, when he appeared so often to have done the wrong thing.

In health, Mr Jones was a particularly private and closed off man who had actively engaged in tax avoidance, hiding money in Lichtenstein investments, and had not made a will during the 40 years of his marriage, despite having discussed the terms of a proposed will with friends.

In the early stages of the statutory will application, it was clear that Mrs Jones did not believe that her husband should make any substantial provision for his daughter, and commented that her husband would now be happy not to help his daughter, as she believed he would disapprove of the choices his daughter had made.

However when the officer from the Official Solicitor's office met with Mr Jones, he could clearly recall his daughter. He knew that she lived a long way away, repeated sentiments that he wanted to meet with her, and that if she needed help he would provide for her, with the words, 'Of course, she is my daughter'.

The court was therefore required to consider all the factors that Mr Jones would have considered, were he to regain capacity and seek to draft his will. In considering Mr Jones's best interests, a substantial portion of the judgment is reserved for the issue of being remembered for having done the right thing.

In considering the authorities, the judge said that he did not believe them to be incompatible.
He considered that for many people, but not all, it is in their best interests to be remembered with affection as having done the right thing, and that this was something which the judge was entitled to take into account, alongside the other factors to be considered.

While the case has made it clear that the onset of mental incapacity is not an opportunity for moral correction, the court may consider authorising a statutory will which can make good some of the omissions of the incapacitated individual, without correcting their deliberate defaults.

At its heart, this is what a statutory will means; making good the failure of the individual to make a will while capacious, without correcting the actions that they deliberately undertook in their lifetime. 

Leah Steele is a solicitor at Hugh James

She writes the regular vulnerable clients comment in Private Client Adviser