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Clarion's success in a recent contested statutory will case


Clarion's Disputed Wills and Trusts team obtained a successful outcome on behalf of four clients in a recent contested statutory will case.

Clarion recently represented four individuals in the reported case of Re NT v FS & others [2013] EWCH 684 (COP). This was a statutory will case which proceeded to a two day fully contested court hearing. The case has since been widely reported in the press, law reports and legal journals. It is a significant decision in this area of law, one of only a handful since the enactment of the Mental Capacity Act 2005.

Where a person lacks the necessary capacity to execute a will, an application may be made to the Court of Protection to execute a statutory will on their behalf. Often the provisions of such a will can be agreed between the potential beneficiaries and submitted to the Court for approval. However sadly often the parties involved cannot agree and the Court will have to decide how the statutory will should be drafted.

Under the Mental Capacity Act 2005, any decision made on behalf of a person lacking capacity must be made in that person’s best interests. This is a significant departure from the previous position prior to the Act of “substituted judgment” under which a decision was made in line with what the Court thinks the person would have wanted. Since the Act came into force, whilst the person’s wishes are obviously still a very relevant factor, they are only one of a list of factors that the Court must consider and the weight that the Court will attach to each factor will depend on the facts in each case. The Court’s judgment provides a useful summary of the statute and case law on how the Court approaches this decision. This itself is the subject of another of the blogs on Clarion’s website by Louise Dodds, an associate solicitor in our Disputed Wills and Trusts team.

Re NT v FS and Others [2013] EWHC 684 (COP)

By way of brief summary, the patient in this matter, who cannot be named for legal reasons and was referred to in Court as “F”, suffers from dementia and Alzheimer’s disease. F lacks the mental capacity to make a will. Accordingly his deputy (a solicitor appointed by the Court to deal with his affairs) made an application for a statutory will. F has assets in the region of £3million and without a will this would have passed under the rules of intestacy to his only son. However, F also has a partner of many years whom he lives with and who is essentially now his carer. F also has 3 siblings and an uncle who have had, and continue to have, a great deal of involvement in his life, and an elderly mother who he has always intended to care for. These parties all contended that F would want to leave them something in his will and Clarion represented F’s 3 siblings and uncle.

A central issue in our clients’ case was the importance of a document from around 1986 which appeared to be a will handwritten by F. Unfortunately, the document was not witnessed and therefore was not a valid will. In this purported will F had left legacies ranging from £2,000 up to £20,000 to each of the parties involved save for his elderly mother who was to receive the remainder of his estate.

On behalf of our clients, Clarion argued that this document was of “magnetic importance” as proof of F’s wishes were he to have capacity now, particularly given that he had never, in all the intervening years, chosen to write a new will on different terms. Furthermore, our clients had all, to varying degrees, assisted F throughout his lifetime with his affairs and enjoyed close relationships with him. Their active support and involvement in F’s affairs had ensured his estate was now sizable. By contrast, F’s relationship with his son had not been as happy and F had purportedly questioned his son’s paternity in the past and never formally acknowledged him as his son. However in the absence of a valid will F’s son would inherit the entirety of F’s large estate and our clients would receive nothing.

Given the circumstances, we argued that our clients should receive sizeable legacies in the statutory will, as they had under the 1986 document, and asked the Court to award a portion of the estate to our four clients.

Lawyers on behalf on F’s son and partner argued that given the time that had passed since its making, the 1986 document had no relevance to F’s wishes. Instead they argued that it would be in F’s best interests to leave the majority of his estate to his son and partner with only very minimal legacies for our clients, but certainly no more than 15%.

The Court considered the arguments of all parties over the course of a two day hearing and agreed with our clients that 15% was too low. The Court therefore ordered that our clients receive 22% of the estate between them and a statutory will has now been drafted on behalf of F in those terms.

This case also serves as a warning that if you do wish to make a will it is advisable to obtain legal advice to ensure that the will is drafted and executed correctly to ensure that your wishes will be carried out.

If you have a relative who lacks capacity and you believe a statutory will would be appropriate, or if you have any other issues relating to the Court of Protection or contentious probate generally, please feel free to contact me.

Lynsey Harrison is the head of Clarion’s Disputed Wills and Trust team and deals with all aspects of contentious probate and Court of Protection work. She can be contacted directly on 0113 3363388.

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