Your will can be ignored, say judges.

Your will can be ignored, say judges – Telegraph.

Actually, it might be phrased (verbatim from the judgment)

Parliament has entrusted the courts with the power to ensure, in the case of even an adult child, that reasonable financial provision is made for maintenance only

For the judgments in questionm, the Bailii references are:  Ilott v Mitson & Ors [2015] EWCA Civ 797 (27 July 2015) and the previous judgment of Ilott v Mitson & Ors [2011] EWCA Civ 346 (31 March 2011).

The case centres around the unhappy tale of a mother (Melita Jackson) who, being bereaved whilst pregnant, had her only child, a daughter (Mrs Ilott).  Mrs Jackson, died leaving a will that expressly excluded her daughter from benefit, leaving all her estate to animal charities, despite there being no obvious connection or affection for animals or such charities

There is no evidence that the deceased had any connection with the charities, or that, during her lifetime, she had any particular love of, or interest in, either animals or birds.

Mrs Ilott left home whilst a teenager of 17, to live with Mr Ilott, whom she later married.  Mr Ilott and Mrs Ilott have a very low income, below £5000 a year, have five children, and are entitled to state benefits.  They are eligible to buy their home, under the right to buy legislation.  Their schedules of expenses show a very modest standard of living.

Mrs Ilott and her mother were estranged following the departure from the family home.   Although both parties contributed towards the estrangement, three attempts were made at reconciliation, but none was successful.  The trial judge considered that the evidence showed Mrs Jackson having been

unreasonable, capricious and harsh

towards Mrs Ilott by excluding her from the will, but that on the facts of this case, estrangement ought not to affect the size of the amount awarded.

The latest decision concentrates on the factors to which the court should have regard when considering a claim made under the IPFDA and considers in particular the interconnection between the beneficiaries under a will, and the requirements that they might reasonably expect, and the needs of those who are closely connected to the deceased, and the financial provision *for maintenance* that might be appropriate.  In this case, there was no financial need on the part of the beneficiaries of residue – as charities, this was a windfall.  On the other hand, the daughter had substantial need.   The fact that Mrs Ilott did not have the ability to earn much salary or any pension provision was not considered detrimental:  Mrs Ilott contributed towards society, albeit in her capacity as mother to five children

while she may not have made the choices in life that her mother thought were necessary for her to make a success of her life, she has made a success of her life in other ways through being a mother and homemaker. Third, not only may it be difficult to apportion fault here but there may not have been fault on anyone’s part. Estrangement may simply have been the result of Mrs Jackson’s inability to make lasting relationships with anyone, of which there is other evidence. 

The fact that Mrs Ilott was an independent adult with no disabilities who was not financially dependent on the deceased limited the award that would be given to her.

Mrs Jackson’s obligations and responsibilities to the appellant (section 3(1)(d)):

Ms Stevens-Hoare submits that the ordinary family obligation weighs to some extent in her favour under section 3(1)(d) but she accepts as she is bound to do that the fact that Mrs Jackson had no responsibility for her as an adult child living independently weighs against her.

and:

Mrs Jackson’s testamentary wishes:

Ms Stevens-Hoare submits that the judge was wrong to pay such high regard to the deceased’s testamentary wishes. There was no other beneficiary’s needs to which the court had to pay attention. Since the trial judge had found that it was unreasonable to exclude the appellant, there had to be consideration of reasonable provision. Ms Reed submits that DJ Million was correct to have regard to the deceased’s testamentary wishes: see per Oliver J in Re Coventry dec’d [1980] Ch 461 (“An Englishman still remains at liberty at his death to dispose of his own property in whatever way he pleases.”).   In my judgment Parliament has entrusted the courts with the power to ensure, in the case of even an adult child, that reasonable financial provision is made for maintenance only. In my judgment that limitation strikes the balance with the testamentary wishes of the deceased whose estate is used for the purposes of making an award, at least in this case where there is no other claimant apart from the Charities. They have no demonstrated need or expectation.

3 Matters to which court is to have regard in exercising powers under s. 2.

(1)Where an application is made for an order under section 2 of this Act, the court shall, in determining whether the disposition of the deceased’s estate effected by his will or the law relating to intestacy, or the combination of his will and that law, is such as to make reasonable financial provision for the applicant and, if the court considers that reasonable financial provision has not been made, in determining whether and in what manner it shall exercise its powers under that section, have regard to the following matters, that is to say—

(a)the financial resources and financial needs which the applicant has or is likely to have in the foreseeable future;

(b)the financial resources and financial needs which any other applicant for an order under section 2 of this Act has or is likely to have in the foreseeable future;

(c)the financial resources and financial needs which any beneficiary of the estate of the deceased has or is likely to have in the foreseeable future;

(d)any obligations and responsibilities which the deceased had towards any applicant for an order under the said section 2 or towards any beneficiary of the estate of the deceased;

(e)the size and nature of the net estate of the deceased;

(f)any physical or mental disability of any applicant for an order under the said section 2 or any beneficiary of the estate of the deceased;

(g)any other matter, including the conduct of the applicant or any other person, which in the circumstances of the case the court may consider relevant.

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Walker -v- Badmin [2014], Testamentary Capacity is a common law issue

Fascinating new case about testamentary capacity and the differences between the Mental Capacity Act test and the old common law test of Banks -v- Goodfellow.

I expect there to be huge amounts of commentary about this, but Araba Taylor certainly seems to have done a good job here:  she has provided enough argument for the judge to be convinced that the MCA does not apply to tests of capacity of deceased persons and the validity of the wills made.

This is quite a massive step – since the Act introduced a new set of distinct tests for capacity, there has been a question over whether the MCA test for testamentary capacity was the same as, or superceded the common law test.  Most textbooks have been decidedly woolly on the subject – saying it was a rephrasing of the common law in modern language – Banks and Goodfellow is quite old now…  (over 140 years) and one might think that our understanding of mental awareness has increased over the intervening years.

This judgment suggests that the MCA test is higher than the common law test – which sets the bar lower – partly because many people who make their wills do so when elderly and infirm, and sometimes when they need the help of others to fully comprehend their circumstances so they can make effective decisions.  And that this cannot have been intended by the lawmakers at the time.

23. A second difference arises from section 3(1), which requires a person to be able to understand all the information relevant to the making of a decision. This, at least arguably, may in some cases require more of the testator than the common law test, which concentrates on whether the will correctly represents the testator’s intentions and his appreciation of the claims to which he ought to give effect, but does not require in all cases that he is able to remember and understand all relevant information. See Banks, above, Fuller v. Strum [2001] EWCA Civ 1879 at [65] and paras. 32-3. below.

24. A third difference is that the effect of section 3(1) read together with section 3(4), if applicable, would render a will invalid if the testator was unable to understand, use or weigh information as to the reasonably foreseeable consequences of the choices open to him, because of the impairment of his mind or brain. Presumably, that would be limited to material consequences, that is consequences which the testator might reasonably be expected to take into account, but this too probably requires more of a testator than the Banks test, at least in some cases.

It seems that the judge here has considered that the common law test should be determinative when considering whether wills are made validly, and that the MCA directions more correctly apply to the statutory wills regime (whereby the Court of Protection sanctions a will that the patient would have made, had they had capacity). This is also relevant when challenging wills, because of the burden of proof that lies with the propounder of the will to prove that any doubts as to validity have been allayed, once a suspicion has been roused.  The MCA presumes capacity, wherever possible.

In addition, the rest of the MCA is all about assisting patients with decision making and autonomy when they are living, rather than examining the decisions that have been made.

The judge in this case wondered whether it was possible for any testator to fully give all considerations to the material consequences of their decisions.  Perhaps some of the decisions made in a will might be dependent on legal advice as to their efficacy.  In the circumstances of this case, the testatrix left a life interest in what she had (which included an unresolved interest in the former matrimonial property) to her partner (remainder children), and then from the residue, she left part to her children and part to her partner.  The partner was of the same generation as the children.  The practical effect of a life interest would mean that her children would be unlikely to benefit in their own lifetimes, but it would be for the grandchildren to benefit in due course.  Was the letter (which may or may not have been written by the testatrix, and probably by her partner, but signed by the testatrix) written to explain the rationale behind the decisions she made enough to show that she had a full understanding of the effect of her will?

In this decision, having weighed considerable evidence, the judge thought that the testatrix’s side letter did show some reflection on the consequences of having a life interest.

As a side note, the judge did consider that it might well have been prudent to seek medical advice at the time of taking instructions, as per Kenward and the Golden but tactless rule…

Woman who disowned mother fails in claim on estate | STEP

Woman who disowned mother fails in claim on estate | STEP.

 

Conduct does affect the way the court views the situation of a child claiming for support under the IPFDA.  And a letter outlining the reasons for excluding a child has significant weight.

In considering the request, the judge was entitled to consider Wright’s conduct toward her mother – Mary Waters had left a letter explaining her reasons for disinheriting her daughter. A key element was that Mary Waters had sent her daughter GBP10,000 to invest on her behalf in 1998, but Patricia Wright later refused to return this money, insisting that it was a gift. In her letter of wishes, Mary Waters stated: ‘My daughter has already taken without my consent GBP10,000 of my savings’.

There had later been a serious falling-out between mother and daughter on other more personal matters. These quarrels culminated in Patricia Wright sending her mother a letter disowning her and wishing her dead, and stating that she did not wish to communicate with her any more. There was no further contact between them.

One might conclude that if mother and daughter had made it up and become marginally less estranged, the IPFDA letter, if unamended, might have been less effective.

Watts Fair – and what’s legal.

Watts Fair – and what’s legal.

The Inheritance Act Claim –v- the forgery

Watts-v- Watts [2014] EWHC 668 (Ch)

It’s been in the news recently – the Daily Mail and the Telegraph making reference to a daughter challenging her mother’s will so that she could receive a benefit – because the daughter was not working and her brother (who got everything under that will) alleging that she was waiting for her mother to die so she could pay off her debts.  Christine Watts, (according to her brother’s barrister) has “done nothing to get a job” since 2005 because she expected to be rescued by a share of her mother’s £200,000 estate.

It sounds like another case of a hardworking son who did everything for his Mum, staying by her bedside through to the bitter end – and a daughter who was workshy – and just waiting for Mum to die, and not putting in the effort to get a job or to visit her mum.

One side of the argument is that Valerie should have made a will leaving something to Christine – the other side of the argument is that the 2011 will is a forgery:  that it was not signed by Valerie, but by Christine’s brother Gary, who thought he was entitled to have something, and that the witnesses were either lying or duped into signing something that was not a will, and not in Valerie’s presence.

However, reading the judgment of the case reveals that it is not as simple as this: what emerges is a story of considerable sadness, combined with a certain amount of greed and a casual approach to the law.  It also transpires that the “deserving” son was in fact also receiving benefits – the judgment reports: Gary freely admitted to working only 16 hours per week ‘because’ that was the most he could do without losing his benefits

Mrs Valerie Watts (Valerie) had adopted two children – a daughter (Christine) and a son (Gary).  She had made a will in 2009 and another will in 2011.  In her 2009 will, she left her assets to be divided equally between the two.  By 2011 she was very ill with terminal cancer.  She made a will on her deathbed, leaving everything to Gary.  The judge observed that Gary was, indeed, an attentive son, being present at the bedside.

Reading the judgment, the reader is transported back to the scene in the hospital and the way that it was described in court some years later.  It appears that Valerie’s sister, Yvonne was asked to get a will from WH Smith and wrote the will for Valerie.  Yvonne received nothing under the will and was one of the witnesses.  Somewhere along the line, it was realised that Gary could not be a witness as well, and he went out to the nurses’ station and coerced one of the nurses into the room.  Although the nurse made it clear that she was unable to witness wills or official documents, as she was not permitted to under the terms of her employment, she was assured that she would not get into trouble.  She was not told that it was a will.

At no point whilst she was in the room did Valerie say anything at all, being in a drowsy state, capable of being roused if someone needed to speak to her. She was very clear that she did not witness Valerie sign the will or any document, but she did see Gary sign the document. She did not read the document before signing it. After Nurse Brown signed the document Gary thanked her and she left. She did not see Yvonne sign the document.

It is on the basis of who is most believable that the judgment of this case hangs –  Are the formalities of the will signing complied with? – ie, did Valerie sign this will?  The judge thought not, on the balance of what she heard.

I prefer Nurse Brown’s evidence to that of Gary on the question of what he told her at the nurses’ station. I accept that he did not ask her to come and witness his mum’s signature. I accept that he invited her into the room by saying that his mum needed something. Nurse Brown was not told that she was witnessing a will by Gary or, I find, by Yvonne. As a matter of law, this does not matter: Smith v Smith (1869) LR 1 P&D 143. I find that she did express her inability to sign any official document to Gary and Yvonne in Valerie’s room, and that she was reassured by Gary that what she was signing would not get her into any trouble. That is why she signed it. She was misled by Gary. Had she been told it was a will she would not have signed it, being a conscientious professional who would not knowingly disobey this important rule laid down by her employer. I find that she did not realise that it was a will until Gary visited her in St Thomas’ in October or November 2011. That visit was an attempt by Gary to influence what Nurse Brown would say

And then ruled that the earlier will would stand.

I have taken into account that it is entirely possible that on 12th January 2011 Valerie might well have wanted to change her will to cut out Christine. If that were indeed the case it is clearto me that neither Gary nor Yvonne would then have discouraged her, as in my judgment Gary had developed a sense of entitlement which he displayed in the witness box and Yvonne, who never got on with Christine, shared his view. Nor do I have to decide whether Valerie could not, at the last moment, bring herself to complete the act of cutting out her daughter or was physically too weak to sign. The decision which I have come to is primarily based on my assessment of the evidence given by the three witnesses of fact, and has taken into account my views of the respective strengths of the opinion evidence given by the expert witnesses.

There are two sides to most stories – and unlike the media, the judge was not impressed by the story of the son, to the extent that it would overlook forgery.  The court was sensitive to the nature of the relationship between mother and daughter and to the daughter’s very real medical issues, not drawing the inference suggested by the media reporting during the trial.

This case, far from being about a grasping daughter who did little for her mother but waiting for her to die, is all about the actual legal formalities of signing a will and why they are there and need to be complied with – the real reason why there are two witnesses.