State of play: case summaries

This case considered whether a testatrix's 'alleged insane delusions' affected her capacity to alter an earlier will, and if an inability to read or write prevented the testatrix from understanding the contents of her will.

The testatrix was Iona Ramsey (IR),
a mother of seven. In 2002 her son, Roynel Ramsey (RR), moved into her house to care for her and look after her financial affairs.

In 2006 IR made a will which named RR as one of two executors, and left her estate equally between her seven children. The 2006 will was accepted by all concerned as being valid.

In 2008 IR made a second will which was drafted by the same solicitor as the 2006 will. The 2008 will made limited provision for RR, suggesting that he had 'bullied and harassed' his mother and stolen from her.

The will also made limited provision for IR's daughter, Lova Ramsey (LR), claiming that she had already made improper provision for herself from
IR's money.

Following IR's death, RR commenced an action seeking to revoke the 2008 grant of probate in favour of the 2006 will.

He claimed that IR did not have testamentary capacity in 2008, and had been suffering from 'insane delusions' which caused her to irrationally suggest her children, namely RR and LR, had acted improperly.

RR also questioned whether his mother could have known and approved the content of the will in 2008.

The High Court rejected RR's suggestion that his mother's beliefs were irrational, and rejected medical evidence suggesting that IR's moderate dementia would have made her vulnerable to false ideas about people, on the basis that the expert report went beyond its scope, mixing fact and opinion.

With regard to LR, the judge thought that her unwillingness to account to IR regarding her financial affairs, could reasonably be interpreted by IR as improper. IR's beliefs in relation to RR could also have been held by a rational person, and 'the disposition of her estate was not effected by any false beliefs about RR', and were 'entirely understandable' in the circumstances.

An inability to read or write (in these circumstances) did not prevent understanding; IR understood the content of her will when read aloud, and did not need to read or write for the purposes of the 2008 will.

IR was fully assisted by her solicitor in this matter, who documented all meetings.

This is a useful reminder for practitioners to fully record meetings with clients in relation to making and executing wills.

Much of the evidence in this case focused on the solicitor's assessment of IR's capacity and understanding, and the attendance notes recording interactions with the client were relied on as crucial evidence.

See Ramsey v Ramsey [2015] All ER (D) 32 (Sep)

 

Baddeley v Sparrow

In a case dealing with the preservation of land held in specie for charitable purposes, the upper tribunal has allowed an appeal from the first tier tribunal. The decision confirmed that land held at the Bath Recreation Ground could continue to be used by Bath Rugby Club, and that the charitable trust did not require the land to be preserved in specie as open space for recreational use.

Bath Recreation Ground Trust (BRGT) was created by a conveyance to Bath and North East Somerset Council (BANES) in 1956; an open recreational space in the centre of Bath. At the time of the conveyance, BANES were unaware that land was beneficially held on trust for recreational use with terms preserving the land in specie as open recreation space. Unaware of the trust, BANES allowed the construction of a leisure centre in 1974 and granted a 75-year lease to Bath Football Club in 1995, allowing the club to use the land as a rugby pitch and stadium for Bath Rugby Club.

The matter was considered by the High Court in Bath and North East Somerset Council v Attorney General [2002] EWHC 1623 (Ch), and it was held that, despite the confusion, the land was held for charitable purposes.

Following the conclusion of Mr Justice Hart in 2002 and a subsequent public enquiry, the Charity Commission produced a draft scheme to clarify the terms of the charitable trust. Three local residents objected to the terms of the scheme and appealed to the first tier tribunal. The scheme was accepted by the first tier tribunal by virtue of its necessity, but the governance arrangements were amended to enhance the charity’s independence.

The trustees of BRGT appealed this decision to the upper tribunal on the basis of an error of law. This was on the basis that (a) the first tier tribunal had wrongly concluded that the purpose of the charitable trust was to preserve the ground in specie as an open space, and therefore could not be used for any other purpose; and (b) the first tier tribunal wrongly distinguished this case from Oldham Metropolitan Borough Council v Attorney General [1993] 2 All ER 432. If both of these grounds failed, the tribunal was asked to consider that the 1995 lease was a cy-près provision, altering the purposes of the trust.

The upper tribunal issued its decision on 30 July 2015 and allowed the appeal on the basis that the construction of the BRGT did not require preservation of the ground in specie as open space, and that this case should not be distinguished from Oldham (the purpose of the land itself is not intrinsically charitable by virtue of the characteristics of the land).

The original conveyance was constructed in such a way that the recreational element was the distinguishing feature, not the open space element. Though the third ground was irrelevant, the upper tribunal commented that if the land did have to be preserved as open space, the lease in 1995 would have been in breach of trust, but a cy-près occasion would have arisen.

While the very specific circumstances in this case may restrict its broader application, the upper tribunal made some useful comments in relation to cy-près occasions as a result of a breach of trust. It is unlikely that this approach would be taken in circumstances where it is clear from the charity’s constitution what its charitable purpose is, however in an area of law where there is little case law or commentary, this case may be useful in the future.

See Baddeley v Sparrow and others [2015] UKUT 420 (TCC)

 

Re ARL

This case concerns an application to the public guardian to revoke a lasting power of attorney for property and financial affairs. The case looks at the provisions of section 22 of the Mental Capacity Act 2005, disputes regarding funding of care, the Human Rights Act, and costs in respect of these applications.

A, aged 86, was a widow with two children, JJT and ICL, and lived in a nursing home. In her LPA she appointed both children jointly and severally to be her attorneys for property and financial affairs. A lawyer, LP, drew up the LPA document, witnessed A’s signature and signed Part B as the certificate provider. The LPA was registered in October 2012.

In July 2014 concerns were raised with the Office of the Public Guardian (OPG) regarding ICL’s management of his mother’s property and affairs. There were two main themes.

First, there was a debt of £39,000 for unpaid care fees, which ICL was unwilling to pay because he believed that his mother should be receiving NHS continuing healthcare. ICL also had other disputes with the county council, claiming that his mother had been placed in the nursing home without his consent. It was also noted that ICL had not visited his mother for some time.

Second, there was concern that significant sums from the sale of his mother’s house were being used by ICL to fund the purchase of a flat in his name, and to finance his own living expenses and those of his son, who lived abroad.

The public guardian applied to the Court of Protection in December 2014 for an order that the LPA be revoked, that a panel deputy be appointed, and that ICL be ordered to account for his dealings with his mother’s money.

LP asked that she be joined as a party, JJT be appointed with LP as co-deputy, and that ICL be heldaccountable. JJT supported the application of the public guardian and LP, and also said that the relationship with her brother had broken down. ICL opposed the application and sought to defend his handling of his mother’s finances.

In the hearing, Senior Judge Lush reviewed the law relating to revocation of an LPA, including section 22 of the Mental Capacity Act 2005 and the case of Re J. He found that ICL had behaved in a way that had contravened his authority, or was not in A’s best interest. The LPA would be revoked insofar as it appointed ICL to act as an attorney, and the OPG would limit the registration to JJT.

Senior Judge Lush commented strongly on ICL’s failure to pay the nursing home fees, and said: ‘As is frequently observed in cases of this kind, a failure to pay care home fees, a failure to provide an adequate personal allowance, a failure to visit, and a failure to produce financial information to the statutory authorities go hand in hand with the actual misappropriation of funds’.

Senior Judge Lush listed the various misappropriations of funds in detail and stated that he had no confidence in ICL. Counsel for ICL raised a point regarding the Human Rights Act and that A’s choice of attorneys should stand.

Article 8 of the European Convention on Human Rights 1950 was looked at, but Senior Judge Lush confirmed that he was satisfied that the revocation of the LPA was necessary and in accordance with the law.

The LPA was therefore revoked, with LP and JJT being appointed joint deputies for property and financial affairs.

There is a final note that should be taken from this case, which should act as a timely warning. Senior Judge Lush considered that ICL’s conduct had been ‘appalling’ and no order was made for his costs.

See The Public Guardian v ICL and others [2015] EWCOP 55

 

Re FT

This is a case for reconsideration of an order appointing deputies for property and financial affairs. The choice of attorneys was examined, and the comments on costs and procedure are interesting.

F was in his early eighties. He was a widower and he had five children – T, S and D who all lived in the Hampshire area, and M and P in Worcestershire. F had lived in Hampshire, where he owned a house and business premises with a flat above, occupied by S.

F had moved to a residential care home in Worcestershire which he was self-funding. M and P said that the move had been carefully considered and they both visited regularly, as did their families.

M and P applied to be appointed as their father’s deputies for property and financial affairs. There were no objections to the application, thus in September 2014 they were appointed as deputies jointly and severally.

F’s youngest child, D, wrote to the court using an Appellant’s Notice Form COP35 (instead of a form COP9) asking for all five siblings to be appointed as deputies, and for the application to include personal welfare. Senior Judge Lush agreed that Form COP35 could be amended.

Witness statements were filed and it was clear there was a dispute regarding S and the occupation of the flat above F’s business premises, centred on an ‘irrevocable deed of gift’, supposedly dated 24 March 1994, in which F purported to give S the flat above the property. The evidence against the deed being valid and it being proven to be a forgery seemed overwhelming.

The hearing took place in July 2014, which M and P attended with a barrister. T, S and D did not attend. Senior Judge Lush asked to see a copy of F’s will, which appointed M and P as executors.

Senior Judge Lush considered this to be a ‘factor of magnetic importance’. Naming M and P to be his executors to look after his affairs when he died was a ‘relevant written statement made by him when he had capacity’. It suggested that he trusted them implicitly to fairly and competently deal with his personal and business affairs. It was noted that he appointed them even though they lived in Worcestershire.

Both selling the business premises and flat in Hampshire were considered as, at this time, F’s savings were very small in relation to the cost of the care fees. However F’s house had been sold and funds were available to pay for care. M and P had assured S that they would not sell the shop and flat while there were other funds available to pay for their father’s care.

Senior Judge Lush confirmed the order made in September 2014 appointing M and P jointly and severally to act as F’s deputies for property and affairs.

Senior Judge Lush considered the rules regarding the awarding of costs, rule 156 and rule 159, of the Court of Protection Rules 2007. He drew attention to the fact that the conduct of the parties could be considered, and stated himself ‘singularly unimpressed’ with the conduct of T, S and D, including the fact that they pursued the application once they had been assured that the flat would not be sold and did not turn up at the Hearing. D, S and T would therefore pay the costs.

Interestingly, the deputies were authorised to make an interest-free loan to the applicants to pay the costs, and that the loan would be repayable by the applicants from their respective share of F’s estate on his death.

See DC, TT and ST and MA and PB [2015] EWCOP49

 

Jennifer Ridgway is an associate in the private client team at Michelmores

Elizabeth Eyre is an associate at Barlow Robbins

Jennifer and Elizabeth write regular case updates for Private Client Adviser