State of play: case summaries

Slattery and others v Jagger and others

In this case, the Chancery Division allowed the claimants' application for a will to be construed so as to include the words 'to my wife', which were accidentally omitted, to give effect to a gift to the widow of the testator.

The testator, AJ, died in March 2014 at the age of 89. AJ had made two wills, the first in April 2007 and the second in June 2011, thereby revoking the first will. In his first will, he had left his share of the family home, held as tenant in common, to his second wife, RJ.
In his second will, clause three read:

'I give devise and bequeath my beneficial share...in...any...property...which my wife and I co-own as principal residence at my death and I declare that this gift is to be free...of any money charged...on my share...for her own use and benefit absolutely'.

The claimants were the executors of AJ's estate, being his stepson (RJ's son) and RJ. The claimants argued that the words 'to my wife' were missing from this gift and there was significant evidence to show this. The defendants were AJ's son from his first marriage and AJ's grandsons via his first marriage, who between them were entitled to two thirds of the remainder of AJ's estate.

The court considered evidence from the solicitor who prepared the draft will. She admitted her error in drafting the will and provided evidence showing AJ's intention to gift the matrimonial home to his second wife, RJ, in the form of attendance notes.

The court considered the effect of not allowing the purported gift of the house to go to RJ. This would mean that AJ's half share of the property would fall into residue and be divided as to one third for RJ, and as to two thirds for the defendants. The court considered that it would not have been AJ's intention to revoke his 2007 will (which gifted the house to RJ) and leave RJ in a less favourable position.

The court found that this was a clerical error given the clear intention of AJ. The solicitor admitted that the words 'to my wife' may have been missing from her dictation, or her secretary who typed up the dictation omitted to include these words. Another error in the document provided further indication that there was a clerical error here (the words 'I shelve' were included in the will in place of 'as shall').

The will was therefore construed to include the words 'to my wife'. In addition, the court said it would also have found sufficient proof for rectification, although it was not necessary to do so following the decision on the construction of the will.

See Slattery and another v Jagger and others [2015] EWHC 3976 (CH)

 

Kebbeh v Farmer and others

This case was an application for provision brought under the Inheritance (Provision for Family and Dependants) Act 1975 (the inheritance act). The claim was against the estate of Malcolm Geoffrey Mitchell, who died on 26 September 2011 in Gambia. The claimant was George Mitchell’s second wife.

The question put to the court was whether Geoffrey Mitchell was domiciled in England or Gambia at the time of his death, as clause 1(1) of the inheritance act states that an application may only be brought where a person dies domiciled in England and Wales. 

The deceased had three daughters; two with his first wife and one with the claimant. Subject to various pecuniary legacies, Mitchell’s will divided his estate equally between his three daughters. No provision was made for the claimant. 

The defendants argued that the deceased died domiciled in Gambia, having acquired a domicile of choice there, preventing the claimant bringing a claim under the inheritance act. A person acquires a domicile of choice by being resident in a new jurisdiction and forming an intention to remain there permanently or indefinitely. 

Judge Purle QC emphasised the need to look for actual conduct to validate statements about a settled intention to live somewhere permanently or indefinitely. Despite having property and family ties in England, it was found that the deceased had formed a strong attachment to Gambia (where he met the claimant) in the last 17 years of his life.

Judge Purle considered the case law on domicile and looked at the unusual facts of this case in turn, many of which serve as a good reminder of the law.

First, considering the fact that the deceased did not have Gambian citizenship, it was noted that citizenship is not decisive of domicile. The deceased had clearly acted in such a way as to intend to be permanently resident in Gambia, despite the seemingly contrary desire of the claimant, who is from Gambia, but wanted to live in the UK. 

The appointment of two English executors was discussed and considered, which is not surprising since the majority of the deceased’s estate was to pass to persons living in the UK. 

The availability of property in the UK was also considered, but it was clear that the deceased’s main and only ‘family’ home was in Gambia. 

It was noted that Geoffrey Mitchell returned to England for a period for the birth of his third daughter (with the claimant), and continued to visit England periodically. Judge Purle looked at the number of days spent in England and the purposes for the visits. Ultimately, it was considered that the deceased acted in a way that was consistent with his continued statements of his intention to reside permanently in Gambia. 

There was some discussion as to the deceased’s marriage with the claimant and whether they were divorced. Judge Purle concluded that the couple were separated and not living as a conventional husband and wife, although they were not actually divorced. This explained the claimant being resident in the UK while the deceased lived in Gambia, his genuine home, and his periodic visits to the UK were in connection with their daughter. 

Judge Purle decided that taking into account all the facts of the deceased’s life, his domicile of origin had been ousted by a domicile of choice of Gambia, and he had consistently shown his intention to reside there permanently or indefinitely, through his conduct as well as statements.

See Kebbeh v Farmer and others [2015] EWHC 3827 (Ch)

 

PB and RB and London Borough of Haringey

This case concerns the welfare of R, a 74-year-old lady with dementia. It focuses on where she should live, who should look after her and what contact she should have with her family and in particular, her son P.

R was diagnosed with Alzheimer’s Disease in 2009. She continued to live at home with carers provided by the London Borough of Haringey. R’s son, P, was not happy with the carers and wanted to provide evening care for his mother. P first applied to the Court of Protection in February 2011. In May 2011, R moved to The Lodge for a respite stay.

The hearing before District Judge Eldergill in December 2011 concerned whether R had capacity to decide where she lived, the extent of her care by P and the Local Authority carers if she lived at home, and how P and the carers interacted with each other and R’s three daughters.

The hearing resulted in R returning home in January 2012. P was allowed to visit his mother and to help care for her although with various restrictions: he was largely precluded from visiting her when the carers and other family members were present. P agreed to abide by the restrictions and gave undertakings in this respect. 

The issues of R’s welfare continued into 2012 as it was alleged that P had not kept to the undertakings. There was an interim hearing in March 2012, which P did not attend, and it was ruled that the restrictions placed on P’s contact with his mother should continue.

A hearing in September 2012 heard 13 allegations from the Borough of Haringey concerning the conduct of P, which included various incidents at R’s home and the carers assigned to her. Other alleged incidents concerned P’s contact with R’s doctors and the staff at Haringey where he had been abusive to them. There were no allegations regarding P’s actual conduct towards his mother, save for a concern about the meals he provided in view of her weight gain. Each of the 13 alleged facts was examined carefully by District Judge Eldergill, who then made a ruling on each alleged fact as to whether it was true or not. 

A full hearing took place before District Judge Eldergill in October 

2012 to resolve the issue of where 

R lived. This hearing involved R’s son, 

R (represented by the Official Solicitor), the London Borough of Haringey (all of whom were represented by barristers) and also R’s daughters C, D and L. 

P attended the hearing but did not stay throughout and there were some verbal outbursts. District Judge Eldergill made various rulings about R’s welfare including that she lacked capacity to decide where to live, or what level of contact to have with her family, and that she should live at home with a care package. District Judge Eldergill stated:

‘The length of this decision reflects the complexity of the family relationships, the degree of hostility between some of the parties, their inability to agree key facts, the number of litigants in person, the intractability of many issues and the way in which the litigation has sometimes been conducted.  During the proceedings more than one party has attempted to correspond directly with the judge; failed to adhere to directions and timetables; not produced records when required; made allegations that could not be substantiated or acted unreasonably.  

‘Sometimes family members have not attended hearings, or made themselves available for questioning or to give undertakings.  There has been a change of solicitors and counsel.  I have no doubt that further difficulties lie ahead.  These may necessitate the case is returned to court, possibly before a different Judge, who will then have to disentangle the threads of the proceedings, the previous conduct of the parties, what has happened at past hearings, and so forth.’  

The judge’s words proved prophetic. None of the hearings or subsequent negotiations succeeded in completely resolving the issue regarding where R should live. At the time of the last hearing in December 2015, R had moved from her home to E Care Home where, by all accounts, she seemed to be doing well. 

R’s son sought orders that R be returned home with a ‘robust package of care’, or placed at supported housing with an appropriate package of care. He also sought that certain restrictions on him visiting his mother were lifted or at least varied to allow him to visit his mother whenever he liked. 

P’s conduct throughout the whole matter were a cause for concern. There was no real suggestion that R did not have his mother’s best interests at heart but it seemed that his behaviour at times, and his interaction with the other parties involved, including his three sisters, made things more complicated than they might otherwise have been. P felt that the care provided was not always adequate but it was also thought that P was looking for faults.

The final hearing in December 2015, following various earlier hearings and was attended by barristers on behalf of P, the official solicitor on behalf of R and the London Borough of Haringey. The judgment stretches to 173 pages and includes the judgments in some of the earlier hearings concerning R and the full Independent Social Worker’s report. 

R’s mental capacity generally and to decide where she wanted to live was considered alongside the relevant law including the Mental Capacity Act (MCA). The documentary evidence, including reports was considered, followed by oral evidence from P and then the various formal submissions made. The judge concluded with an analysis of R’s best interests.

The sheer depth of detail in the judgment is impressive, as is the overriding importance of applying the best interest principles under the MCA 2005. The hearing enabled the judge to consider all the evidence, as well as a wide range of viewpoints, and to hear from a number of witnesses, both professional (including social workers and carers) and R’s various family members. At one stage, a balance sheet approach was used to help decide whether R stayed at the E Care Home. 

As well as considering the MCA 2005 in detail, the European Convention on Human Rights (ECHR) was looked at in relation to P’s conduct. It was accepted that a limitation of family contact was an interference with Article 8 rights under the ECHR and that it must be proportionate and for a permitted purpose. 

The judge concluded that P’s behaviour had improved and all restrictions against him would be removed so that P could visit R whenever appropriate. R would remain living at E Care Home. 

While it might be a sad comment on family life that cases like this come to court, it is also enlightening to see the way these cases are approached legally, professionally and personally. Only in recent years have the Court of Protection judgments been available to read and it is reassuring to see how decisions are reached on behalf of those unable to make decisions for themselves.

See PB & RB (by her litigation friend the Official Solicitor) & London Borough of Haringey [2016] EWCOP 12

 

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