The handbag case – unauthorised expenses and gifts by a deputy

Re GM (Neutral Citation Number: [2013] EWCOP 2966)

This is another case which makes for valuable reading – the whole transcript can be found here   It follows Re Buckley and if it can be said that that is the reptile case, then this might be called the handbag case, since designer handbags and watches “given” by Mrs GM, to the deputies feature uncomfortably alongside the deputies’ decisions on what clothes GM was allowed to purchase.

The facts: 

Mrs GM was a widow of 93, and had borne one daughter, Barbara, who had predeceased her, a spinster without issue.  Mrs GM had no will, and on intestacy her estate would devolve on her late brother’s daughter and the issue of her late brother’s son.

Mrs GM’s deputies were her late husband’s niece (JM) and grandniece (MJ) and therefore they were related only by marriage and would not be entitled on intestacy.

Mrs GM had approximately £200,000 of her own money, and inherited approximately £300,000 from Barbara.  She had a limited income of £200 per week and her nursing home fees were approximately £500 a week.  She suffered from vascular dementia, and was therefore unlikely to recover capacity.   She did enjoy some activities, although these were limited by the apparent unavailability of funds.

JM and MJ were appointed deputies in August 2010.  A representative from the Office of the Public Guardian met them at the nursing home, and on hearing that some gifts had been made, although not aware of the amounts, suggested that they seek the court’s retrospective approval, which they did, a year later, in October 2011.  Thereafter, the Office of the Public Guardian and the Court process gathered initial and then further information and momentum until the hearing to which the judgement relates, in April 2013.

The gifts 

Sequinned dresses and a matter of taste 

In contrast to the somewhat luxurious gifts acquired by the Deputies and their families, the official visitor from the Office of the Public Guardian reported that a visit to see Mrs GM had revealed that the nursing home thought that GM was very low on funds, as although her care fees were paid promptly by bankers draft, her ancillary expenditure account of less than £500 a year often ran very low and the nieces had to be contacted often with requests for more funds.  It was reported that the nieces appeared reluctant to pay for chiropody, on the basis that GM was diabetic and strongly queried whether such expenses should be paid from NHS funds.  The nursing home took the decision to charge reduced fees to GM as they did not want to lose her and were aware that funds were very short.  GM had told them that she did not have the money to buy things, and the Visitor commented that in her professional opinion, GM would not have sufficient awareness to know how much the home would charge her or even that her accommodation had to be paid for.

On a practical note, the nursing home commented that they considered that an increase in the yearly allowance by a further £100 would greatly enhance her life, as it would permit GM to choose some clothes for herself from those made available to the home.  In submissions, the deputies said that they provided clothes for GM as she tended to purchase clothes that were “cheap and tawdry in appearance and quality”.  GM appears to prefer sequinned dresses, which are “terribly difficult to wash and iron”.  The deputies did concede that they were not themselves responsible for the laundering of GM’s clothes, as the nursing home took care of all laundry

Master Lush included references to these matters in his judgment because although it might seem insignificant, it was indicative of the lack of control GM was allowed to have over her arrangements, even in the smallest and most limited of ways.  Master Lush considered again the duty of deputies to assist and support the Patient, and that in this, as in all the gift giving, whether to family or charities, it appeared as if GM had not been consulted in any way, whether supported or not in her understanding.  As the choice of clothing was apparently one that GM would take great pleasure in, the deputies substituting their judgment for the choices of what they thought GM would have wanted was also in excess of their role, albeit in a minor way.

Misunderstanding of the words in the appointment of deputies 

As might be expected, the lay reading of words can sometimes differ from the legal understanding of them.  It appears that the deputies had considered the wording in the appointment that they “may jointly and severally (without obtaining any further authority from the court) dispose of money or property of GM by way of gift to any charity to which she made or might have been expected to make gifts and on customary occasions to persons who are related to or connected with her, provided that the value of each such gift is not unreasonable having regard to all the circumstances and, in particular, the size of her estate” (this is part of the standard wording on appointment) to mean that they should allocate GM a sum of £200,000 in light of her life expectancy, and then dispose of the balance of this to members of Barbara’s extended family – this was mentioned, with startling clarity in their initial submissions to the court:  “ we acted as we thought the order granted us, to gift and donate in relation to the size of the estate.  As GM is 92 years old, we believe approximately £200,000 to be adequate and if this is not enough [for her to live on] there is no way she will go short”

Such misunderstanding might be understandable, but when dealing with another person’s money, it might on the other hand be considered reasonable to seek legal advice before disposing of another’s money and property to such a great extent, especially if it is to benefit those people who are not entitled on intestacy or under the will of a patient.  Where a deputy or attorney seeks to benefit themselves from any gift, they should make very certain of their authority.  The Court simply did not believe the deputies – and said that their ignorance was no excuse.

Master Lush, in his judgment emphasises that:

It is important that deputies and attorneys should

  • realise that they have only a very limited authority to make gifts
  • understand why that authority is limited
  • be aware that, in an appropriate case, they may apply to the Court of Protection for more extensive gift-giving powers.

Master Lush further described the words “having regard to all the circumstances” as meaning:

  1. the first and paramount consideration is whether the gift is in the Patient’s best interests;
  2. the extent to which the Patient was in the habit of making gifts and loans of a particular size before the onset of incapacity;
  3. the Patient’s anticipated life expectancy;
  4. the possibility that the Patient may require nursing or residential care and the projected cost of such care
  5. whether the Patient is in receipt of NHS continuing Healthcare or aftercare pursuant to s117 of the Mental Health Act
  6. the extent to which any gifts would interfere with the devolution of the Patient’s estate on will or intestacy; and
  7. the impact of Inheritance Tax on the patient’s death.

The size of the gifts and what is the limit that should be given 

Master Lush acknowledged that there was no specific limit or guidelines on limits of gifts that might be made by deputies in the United Kingdom, but considered the law in Alberta, Canada (gifts shall not exceed 5% of the represented adult’s taxable income for the previous year) and in British Columbia (the total value of all gifts loans and charitable gifts made by an attorney in a year shall not exceed 10% of the adult’s taxable income for the previous year, and $5,000).  In the UK, the wording of the order envisages a threshold, beyond which any gifting would be considered unreasonable (known now as the “reasonableness threshold”).  Re Buckley considered that a gift would be below the threshold if it was so small for it to be disproportionate to make a formal application to the court.  For further clarification, Master Lush indicated that this threshold might be construed as covering the annual Inheritance Tax exemption of up to £3000 and the annual small gifts (£250) exemption up to a maximum of ten people in circumstances where

  1. the Patient’s estate exceeded one Nil Rate Band in value;
  2. the Patient had a life expectancy of less than five years; and
  3. the gifts are affordable having regard to the Patient’s current and anticipated care costs and will not affect the Patient’s quality of life;

In the case of GM, Master Lush deduced that the reasonableness threshold would be £4,500 a year, and that in order for any gift to be made it would have to be made to any person who was connected to GM or a relative of GM – this limited the gifts to MJ and JM, their children and grandchildren (and not to spouses)

Why this is so important as a case: 

Whilst Re Buckley was crucial in further defining what duties of investment the attorney had for Miss Buckley, whose affairs she was responsible for, Re GM is very welcome advice on what the court considers to be the appropriate level of gifts that a deputy might make from the funds to which they have access, after their appointment.

The Court of Protection has, historically, been unwilling to give advice over the telephone helpline about what are “appropriate” levels of gifts or expenses, and has proffered the advice that if the attorneys or deputies are in doubt, then they must make an application to the court.  Whilst this is still the case, Re GM does provide more guidance on what the court considers reasonable, and most helpfully, does so in a case where the patient had an average value estate – one which practitioners will encounter in practice reasonably often – of under a million pounds, but above the inheritance tax threshold, and where the income levels of an incapacitated person are low – £200 a week, from state benefits and a small pension.  It also emphasises the distinction between expenses that would be recoverable and the gratuitous benefit of a gift.

It appears from the transcript that the deputies were acting without the benefit of both legal advice, and without having taken on board the standard and publicly available advice produced by the court of protection and the office of the public guardian.  They appear to have taken the order of first appointment very much at face value and interpreted it in a way that seemed suitable to them, without appearing to have any idea of the magnitude of the errors they were making, nor of the potential criminal sanctions that the court has when adjudicating on such matters.  This has been a very unhappy result for Mrs GM personally, but on the other hand, may have shown a spotlight on what was perhaps not clear before.

The Master in this case ordered that the gifts made by the deputies had been excessive, that the expenses claimed were disproportionate and amounted less to expenses and more to gifts, and that they had acted in contravention of the authority that they had been given under the Mental Health Act, that the deputies’ appointment should be revoked and that they should return to the estate that which they had misappropriated.

Memorable parts of the judgment here:

 

  1. I do not accept that the gifts they made were in GM’s best interests. They are completely out of character with any gifts she made before the onset of dementia. There was no consultation with her before they were made and there was no attempt to permit and encourage her to participate in the decision-making process, or to ascertain her present wishes and feelings.
  2. Nor do I accept the applicants’ argument that they believed that the order appointing them allowed them to make gifts on such an extensive scale. They should have been aware of the law regarding their role and responsibilities. Ignorance is no excuse.
  3. The fact that GM’s remaining assets were in the names of one or other of the applicants, rather than in GM’s name, is a further example of what is, at best, ignorance, and, at worst, stealth.
  4. I realise that MJ and JM are the only visitors that GM receives, but this does not give them a licence to loot, and I was unimpressed by the veiled threat that, if the court were to remove them as deputies, they would find it difficult to continue seeing GM.
  1. The applicants were seeking approval of gifts and expenses totalling £277,811.74. The approval of only £73,352 has left them personally liable to GM’s estate in the sum of £204,459.74, which they must pay back.
  2. For the purposes of section 16(8) of the Mental Capacity Act, I am satisfied that the deputies have behaved in a way that contravened the authority conferred on them by the court and was not in GM’s best interests.
  3. I am not persuaded by any of Miss Bretherton’s submissions on their behalf, and I have no hesitation in revoking their appointment as deputies. GM’s finances are in disarray because of their conduct, and it is in her best interests that someone with experience of cases of unjust enrichment and restitution, such as a panel deputy, is appointed to manage her affairs in their place.

 

 

Ilott –v- Mitson: Back to Square One

it was not enough to demonstrate a close family connection only, but that must be ‘some sort of moral claim…beyond a blood relationship, some reason why it can be said in the circumstances, it is unreasonable why no or no greater provision was in fact made [Re Coventry].

The Supreme Court has ruled, unanimously, that the original judgement made in this case  should stand: that Mrs Ilott’s long estrangement from her mother and her financial independence mean that an award should be made, and that £50,000 (from an estate worth approximately £450,000)  had been an appropriate sum to provide funds for Mrs Ilott’s maintenance. Some of this money could be used for the provision of new household items that were in poor repair and the capital awarded might not therefore affect the family’s benefits entitlement.

Judgment was this week handed down in the Supreme Court on the Ilott v Mitson case; heard in December 2016, some 12 years after the date of Mrs Jackson, the testator at the centre of the story. Ilott v Blue Cross

Essentially, the Supreme Court overturned the order made in the Court of Appeal, stating that the original judgement had been correctly decided; on the basis of the information given to DJ Million, he had not erred in either a legal judgement or a factual one. It was therefore not correct for the Court of Appeal to amend the award at all and the award made by them was not on the basis it should have been.   Of the seven Lord Justices hearing this final appeal by the charities against the decision, all seven were in agreement with the judgment that the Court of Appeal had calculated the award made to Mrs Ilott incorrectly.

In the 48 paragraph judgment, Lord Hale quoted the criteria for the 1975 Act for the provision for family and dependants, setting out the differences in the discretion of the Court on cases of a partner or spouse and the ‘maintenance’ order that was the only compensation that could be made for a child.

The judgment also focuses on the potential misunderstanding in connection with the phrase ‘reasonable financial provision’;

“Reasonable financial provision is….what is reasonable for [the Claimant] to receive. These are words of objective standard of financial provisions, to be determined by the court. The Act does not say that the court may make an order when it judges that the deceased acted unreasonably”

This echoes an earlier judgment in Re Coventry [1980] which also stated that on this basis it was not enough to demonstrate a close family connection only, but that must be ‘some sort of moral claim…beyond a blood relationship, some reason why it can be said in the circumstances, it is unreasonable why no or no greater provision was in fact made’

“Circumstances of the relationship between the deceased and the claimant may affect what is the just order to make…the provision which it is reasonable to make will, because of the distance of the relationship, or perhaps of the conduct of one or other of the parties, be to meet only part of the needs of the claimant.” (para 22)

The principle was repeated in para 35 of the judgment, reiterating that the original judgment made no error when considering the nature of the relationship between mother and daughter: emphasising how some adult children may have contributed to the wealth of their parents, or to their health or wellbeing contrasted with the case in hand, when mother and daughter had been estranged for several decades.

“A judge ought in such circumstances to attach importance to the closeness of the relationship in aiming at his assessment of what reasonable financial provision requires. The judge considered each of the factors…  The long estrangement was the reason the testator made the will she did. It meant that Mrs Ilott was not only a non-dependant adult child but made her life entirely separately from her mother and lacked any expectation of benefit from her estate…the judge was perfectly entitled to reach the conclusion which he did, namely that there was a failure of reasonable financial provisions, but that what reasonable financial provision would be was coloured by the relationship between mother and daughter”.

The point was emphasised further in paragraphs 46 and 47: the nature of the relationship between mother and daughter being fundamental clearly making this as a deciding factor

Lady Hale made a further contribution to the judgement, not to dissent but to clarify the perspective offered to the judges by current public consultations including the most recent Law Commission Report in 2011, which might have been offered more satisfactory guidance on the factors taken into account. Given the changing social climate since the 1975 Act was passed it might have been helpful for their Lordships to have more guidance on deciding whether an adult child was deserving or undeserving of reasonable maintenance, in the absence of dependency or disability.

What does this mean for people making wills?

The Supreme Court considers testamentary freedom to be paramount: that the law as it stands (however ill-suited some might feel it is to today’s social structures, it has not been amended by the most recent Law Commission consultation) was correctly applied in the initial case: the fact that Mrs Ilott was a family member and the charities benefitted from the estate was not a reason to depart from the original judgement. The estrangement had been originally referred to in a side letter to a will made by Mrs Jackson in 1984 as well as  the later will of 2002, and this side letter also made it clear that Mrs Jackson had considered the moral obligation she had and stated that she felt no moral or financial obligation towards her daughter, given their strained relationship.

What do clients need to do to ensure their wills are followed?

It is clear that no one is above the court’s authority to adjust the estate for beneficiaries who should have received some benefit. However, for those who have adult children who are financially independent and to whom no promises have been given or assurance of expectation made, the testator is free to choose what they want to do: if the testator has been receiving monies from a child, then the testator may ‘owe’ a moral duty to that child, to be represented by a financial gift.  In case there is doubt as to whether the testator has considered the claims to which they should give effect, it is wise to record that they have been considered. The closeness of relationship between the child and the testator be a factor relevant in any claim against the estate and a testator may wish to record details of the relationship and the reasons for their dismissal of familial bonds and why they have left their estate to others, so that executors have material to show the testator’s perception of the relationship to set against those of a claimant.

What does this mean for adult children excluded from benefit under a will?

If there is little to show the closeness of relationship between child and parent, no promises of future entitlements or great expectations, no financial dependency and the child is not disabled, or in need, their prospects of a successful claim against a parent’s estate will be diminished by this ruling, particularly if they are financially self-supporting.

Families are warned about the Budget stealth tax | Daily Mail Online

Source: Families are warned about the Budget stealth tax | Daily Mail Online

 

I am not a Daily Mail reader, as a general rule – nor a supporter of Rees-Mogg.

 

But the new probate fees will cost many ordinary people a lot of hurt, and I think they are just not aware of the changes.  The consultation on the rise in fees was met with an overwhelming about of negative feedback, but was totally ignored.

The statement that there will be many estates lifted out of the need for getting a grant of probate by this measure verges on the disingenuous – most estates with a value of less than £50,000 do not pay for a grant of probate: in most cases, banks and building societies are prepared to give money to the executors of an estate with almost distressingly little checking – it seems easier to get money out of an account for a deceased person than it is to register a power of attorney.

The problem is that it affects people who would not have expected to pay inheritance tax, and who might have simple wills or not even thought about their wills for a long time – those people leaving everything to their spouse, or to charity, on the basis that there was no tax to pay so there was no need to do anything really.  The introduction of the Transferrable Nil Rate Band and the Transferrable Residential Nil Rate Band have done a lot to perpetuate this theory – that unless you have over £650,000 (or now on a sliding scale up to £1 million for deaths occurring in 2020 onwards) you can leave all you have to a spouse with no worries.

But not now – not only do the smallest estates pay almost double the original fee of £155 (starting at £300), but those “ordinary families” with houses and a few savings (coming to, say £550K, will be caught.

Woe betide those who have no cash, but everything in investments.  Or those with most of the money tied up in the farm or in a business when they die – somehow, money has to be found.  The maximum fee of £20,000 just for assets to pass between spouses is eyewatering, to say the least.

There’s a petition, and of course, you can write to your MP to protest – unless there is a protest of some description, these fees will come in from as early as 1 May.  To say that everyone is on hold to the Inland Revenue to get their forms pushed through ASAP is an understatement – the probate registry has sent out three information notices already on the subject to the tune of “don’t panic Mr Mannering!”

Word of the Day: Farrago

Farrago

 

a confused mixture; hodgepodge; medley:

a farrago of doubts, fears, hopes, and wishes.
In my judgment Mr Fitzgerald’s application is, in all its aspects, misconceived, devoid of factual merit, in major part legally groundless and totally without merit. His allegations against Ms Hughes are scurrilous, fatuous and should never have been made. His application for her committal is a farrago of nonsense.

Day -v- Harris [2013], Curnock v IRC, Phizackerley

Just a quick reminder to myself that these are the current cases concerned the ability of attorneys to make valid gifts, and the interaction with IHT.

Day -v- Harris 2013 Day v Harris and others Same v Royal College of Music and another (Arnold and another, interpleader claimants) [2013] EWCA Civ 191; [2013] WLR (D) 112 and PDF of judgment concerns a registered EPA – and gifts made by the attorney (who was also a joint holder of a bank account) and whether the gifts that he had made were as attorney for the donor, or in another capacity as being access to the joint bank account as was his right as a joint bank account signatory

In my judgment, it remained open to Mr Day to operate the bank account after registration of the EPA as he had done before such registration. He could not use it to benefit himself without the full, free and informed consent of Sir Malcolm but, if he had that consent, as the judge held he did, gifts made by drawing cheques on the joint account were not invalidated by the effect of section 7(1)(c) of the Act even though made after registration of the EPA.

Had the gifts not been validly made, then they were still part of the donor’s estate for IHT purposes – on the basis of Curnock v IRC, Curnock v IRC [2003] SWTI 1053 where a cheque was not encashed prior to the death of the donor – and therefore the gift was not complete by the time of death.  This could also be seen in conjunction with Phizackerley, Personal Representatives of Phizackerley v HMRC [2007] SpC 591

An earlier version of Day -v- Harris, in 2010 concerned the nature of the accounting to be made for the researches of the executor into the amount of the gifts that were made and how far back the executor should go in attempting to ascertain what gifts had been made, and whether the expenses of the executor in doing so were reasonable.

How long does it take to get a grant of probate, again?

Just for solicitors:  a grant ad coll is not a “fast track”…

Probate Service
Target Times for issuing a Grant of Representation:

7 working days from the date of receipt of your application

Example: application received 14/3/2016 would issue on 22/3/2016 provided there are no impediments.

If your application is stopped for any reason, the Grant will be issued 7 working days from the date of receipt of the correspondence clearing the stop

AD COLLIGENDA BONA GRANTS

Please note that an Ad Colligenda Bona application is not a fast track Grant but is a Grant limited for the preservation of the estate

An Order is required from the Registrar before an application can be made.