When is your will not your will?
Here’s a riddle; how can you die leaving a valid will…that you didn’t make and have no knowledge of? It sounds extraordinary and impossible, but it is true.
A ‘statutory will’ can be made on an application to the specialist Court of Protection (CoP), by a judge, for someone who has lost mental capacity to make their own will.
I acted in a recent case for Alan, who applied to the CoP on behalf of his mother, Doreen who had advanced dementia and was living in a care home. Alan and Doreen had always been very close; he was her only child and she had raised him largely as a single parent. Doreen had been married for some 30 years to Brian. They jointly owned a property together worth £300,000 as ‘joint tenants’ which meant that on Doreen’s death her half share would pass automatically to Brian; this was her only asset other than a small amount of savings.
Although for many years Alan and his stepfather Brian had got on well, as his mother’s mental and physical health started to decline, Alan began to realise that Doreen had been the victim of Brian’s coercive control and emotional abuse. He came to see that Doreen’s apparently loving husband was in fact controlling and manipulative. He came across handwritten wills, notes and voicemails furtively prepared by Doreen from which it became clear that over the years, his mother had been desperately trying to ensure that he would inherit her share of the property. None of these papers were legally effective apart from one will leaving everything to him; but unfortunately Doreen hadn’t realised that despite her will, her share of the property would still pass automatically to Brian, because they owned the property as joint tenants.
Alan discovered that Brian’s abusive behaviour extended to bizarre incidents at the care home which frightened and disturbed his mother.
Feeling strongly that his mother’s wishes should be respected, the only option open to Alan was to apply to the CoP both to ‘sever’ the joint tenancy of the property (so that Doreen’s share would not pass automatically to Brian on her death) and to make a statutory will for her.
One concern I had as Alan’s solicitor was that even if a judge granted the application, after Doreen’s death, her husband would be able to make a claim against Doreen’s estate (effectively her half share of the property) under the Inheritance (Provision for Family and Dependants) Act 1975, arguing that he needed her half share to keep a roof over his head. So, Alan made it clear that if he inherited his mother’s interest in the property, after her death he would let Brian continue to live there for the rest of his life- he wouldn’t force a sale.
The question for the CoP was whether the severance and the statutory will would be in Doreen’s “best interests” within the meaning of Section 4 of the Mental Capacity Act 2005 (the “2005 Act”). This question is hard to answer because it is difficult to ascertain what will be in someone’s best interests after their death. In one case, it was suggested that in such circumstances it would be a ‘best interests’ decision for the person to be remembered as having “done the right thing”.
In general, it is easier to argue that making a statutory will is the ‘right thing’, and therefore in someone’s best interests, where there is no will already in existence, because it is thought that most people would want to leave their estate in good order when they die – not least to make life easier for their family and friends. Similarly, if an existing will is likely to lead to conflict between beneficiaries or family members after death, it might well be clear that the right thing to do is to execute a new (statutory) will.
The position is less obvious where the person lacking capacity has an existing will, as in this case and where it was unlikely that Alan would have any legal grounds for a dispute after Doreen’s death. It was for Alan to both set out the terms of a statutory will and to prove why a change to the disposition of his mother’s estate was necessary and would be in her best interests. This has been described by the Court as a ‘heavy burden’.
In the 1997 case of Re S it was said:
“…this is not an area in which judicial precedent really has any weight and it seems to me that there is as much scope for somewhat differing results to be arrived at in different cases as there is for different individuals who are of full capacity but in similar personal and economic circumstances to make substantially different dispositions of their estate”.
In legal terms, this comment was not much help! The case was challenging because we were asking the court to disinherit Doreen’s husband of 30 years in favour of her son – who was not arguing that he was in financial need, but only that he wanted his mother’s wishes to be respected.
The unusual aspects of this case were proving:
- Doreen’s lack of understanding of holding property as a ‘joint tenant’ and
- the coercive controlling behaviour of her apparently devoted husband, such that he should not inherit Doreen’s share of the property despite their long marriage.
Brian used every tactic possible to delay the court proceedings for months until finally a 2-day trial was listed. Had Doreen died while the proceedings were ongoing, her half share in the property would have passed to Brian automatically and, almost certainly, there would have been no further legal options open to Alan. Shortly before the trial, Doreen’s health took a turn for the worse and it became apparent that she was at the end of her life. Extensive negotiations took place resulting in an agreement which was approved by a judge on Doreen’s behalf 2 days before her passing. The joint tenancy was severed, and a statutory will made leaving 40% (rather than the 50% she owned) of Doreen’s share in the property to her son.
Why does this case matter?
A study published in August 2018 in the Lancet Public Health Journal analysed the projected health needs of the elderly in England between 2015 and 2035.
The fastest growing demographic in the UK is elderly people over 85 whose numbers are projected to more than double by 2035, increasing by 1.5 million. The report also predicts that the number of people aged over 65 with dementia and at least two other diseases will double by 2025 and treble by 2035. There will be many more dementia sufferers in the future and the question of who should inherit on their death ought in many cases to be considered during their lifetime, especially if there is the tricky issue of jointly owned property.
Although Alan’s case is unusual, it highlights:
- the need to recognise that financial abuse can be perpetrated by those very close to the victim and at any age, and
- that although this case did not go to hearing and so there is no judgement, arguably financial abuse could in the future be considered a compelling reason for the CoP to make a statutory will for someone who lacks mental capacity.