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Since the decisions in Re P [2010] Ch 33 and Re M [2011] WLR 344, the best-interests test applied by the Court of Protection when adjudicating applications for statutory wills has included an element of seeking to ensure that the testator is remembered as having done the ‘right thing’ by his will. In Re JC, however, the court was faced with the prospect of deciding what was in the best interests of a person described by Senior Judge Lush as having “an appalling track record”, who spent his “entire lifetime doing precisely the wrong thing”, ?and who would “rejoice at being remembered by ?[his children] with disaffection”.

Background check

JC was born in 1922. His estate was worth approximately £3,500,000. He had been married to Mrs C between 1953 and 1957 and was the biological father of four children: A, B, C and D. Only B and C were born during the marriage to Mrs C. A’s mother (who was not Mrs C) had been only fifteen when she gave birth to him in 1942. He had been put into a children’s home at the age of eight.

He had always understood JC to be his father but JC had consistently denied paternity. In the course of the proceedings, the court authorised a paternity test to be conducted, which proved that JC was A’s father. B and C were born of Mrs C in 1953 and 1955 respectively. JC’s youngest daughter, D, was born almost a year after he and Mrs C were divorced. Her conception was the result of a sexual assault following a dispute over unpaid maintenance.

A’s evidence was that he had been in contact with JC for over forty years and had assisted in his property-rental business. He claimed that he had done so on the understanding that JC would make a will in his favour. D, who had been adopted shortly after her birth, had never met JC although, after taking steps to locate her biological family in 1991, she had made contact with her mother and sisters, B and C.

They told her that JC had been violent and abusive to them as children and that neither had had any contact with him for decades. B subsequently made contact with her father in 2006. She visited him regularly in the care home. C, who did not take part in the proceedings, had been contacted by her father in 2007, and had some contact with him. According to B, JC had always doubted that D was his daughter and that he did not wish to contact her. Similarly, D did not wish to make contact with him.

It became apparent that JC had made a will at the instigation of B in late 2008, under which his estate was divided equally between B, C and B’s daughter, Q. JC subsequently said that he had been tricked into making this will. Senior Judge Lush described the circumstances surrounding this will as ringing alarm bells in terms of undue influence and capacity.

JC’s deputy made an application for a statutory will leaving his residuary estate to A, B and C in equal shares. When being assessed as to his testamentary capacity, JC had been asked by the psychiatrist who should be included in his will and had answered: “Nobody. I’m a single man. Bugger daughters that have not done me any good.” He subsequently told the official solicitor’s representative that he did not want a penny going to his family.

He said that he had two daughters, who were both “no good”: he said that C was a lesbian for whom he had no time and that B was “tricky”. JC also stated that he did not like A, whom he described as trying to pass himself off as his son and as being only after his money. He said that there was nobody to whom he wanted to leave his estate.

Temporary measure

At the first hearing of the matter, it was agreed that a will should be made appointing professional executors and leaving the estate to those who would be entitled if JC had died intestate. This was intended to be a temporary measure pending A’s paternity test. Although D attended the hearing and agreed to the will (which, given her adoption, would have excluded her from benefit), she was unrepresented and was advised by the judge to take legal advice.

Having done so, she applied for a further statutory will to be made under which the estate would be divided equally between A, B, C and D. A and B opposed this application (and A made a cross-application that his share should be held on terms such that it passed to the beneficiaries of his estate, rather than to his half-siblings, in the event that he should predecease JC).

It was held by Senior Judge Lush:

• It had been easier for a judge to approve a statutory will before the Mental Capacity Act 2005 came into force because the substituted-judgment approach merely required him to stand in the shoes of the testator and make the will that he thought the testator would make if he had capacity. Although the new approach, as explained in Re P and Re M, was to apply a test of best interests, one should take care ‘not to throw the baby out with the bathwater’. The judge referred to the Law Commission report on which the 2005 Act had been based and recalled, in particular, a comment in the report that stated that the best interests criterion would ‘contain a strong element of substituted judgment’.

• When adjudicating a statutory will application, the judge was required to have regard to: (a) the checklist of factors set out in section 4 of the 2005 Act; (b) the possible application of the ‘balance-sheet’ approach and the identification of possible ‘factors of magnetic importance’; and (c) the recognition 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. As for the checklist of factors, he observed that remarkably few are relevant in applications of the sort before him. However, the factors that required the court to permit and encourage P to participate in the decision-making process and required consideration of P’s past and present wishes and feeling, beliefs and values and any other factors that he would be likely to consider if he had capacity indicated that the Law Commission had achieved its objective of including a strong element of substituted judgment in the best-interests test. The judge also expressed doubts as to the effectiveness of the balance-sheet approach in statutory will applications. Unlike his recent decision in Re JDS [2012] WTLR 475 (a gift application), which effectively involved an exercise in risk analysis, he struggled in JC’s case to identify ‘factors of actual benefit’, ‘counterbalancing dis-benefits’, ‘possibilities of loss’ or ‘possibilities of gain’.

• In addition to his comments (quoted above) regarding JC’s having always done ‘the wrong thing’, the judge considered that, given his malevolence, he would “probably relish the prospect of thwarting his children’s designs on his estate”. The notion of doing ‘the right thing’ in JC’s case generated some singularly unattractive arguments. Both A and B had told the court that they would not remember their father more fondly if any provision were made for D in the statutory will.

Substituted judgment

• If JC had testamentary capacity, he would choose to do nothing: the overwhelming weight of evidence was in favour of his dying intestate. The case, therefore, presented a combination of substituted judgement and best interests. Applying the substituted-judgment approach, JC would choose to die intestate. However, given the family dynamics and the nature and extent of his estate, the judge considered it to be in his best interests to make a will in order to appoint independent professional executors who were familiar with ?the background.

• As for the dispositive provisions of the will, the judge acknowledged that JC’s relationships with A, B and C had generally speaking been of short duration and poor in terms of quality. There had, however, been some kind of personal interaction between JC and them. By contrast, there had been nothing at all between JC and D, neither of whom wished to make contact with the other. This was the factor of magnetic importance that meant ?that it was not in JC’s best interests to make provision for D in his will. Her application ?was therefore dismissed.

• The judge allowed A’s application that he should be allowed to decide upon the devolution of his share of the estate should he predecease his father and he also decided to extend this privilege to B and C. Whereas the intestacy provisions determining the shares of those who predecease the intestate might be appropriate in the context of a traditional family, they were not appropriate ?in circumstances where JC’s biological children were not really a family at all and there was little to indicate that any of A, B or C would wish ?his or her share to pass to a surviving sibling or half-sibling.?

This decision once again highlights the difficulties of applying the best-interests test in the context of applications for statutory wills.

In particular, it highlights how the balance-sheet approach, which is more suitable for a risk-assessment exercise than it is for deciding how an estate should be left, will often provide little assistance.

Furthermore, although the facts of the case are particularly unusual, it tends to support the observations of Morgan J in Re G(TJ) [2010] EWHC 3005 (COP) that the identification of the ‘right thing’ to do is difficult and often of little practical assistance in contested statutory will applications.

Joseph Goldsmith is a barrister at 5 Stone Buildings

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