ADS v DSM [2017] EWCOP 8

​Appeal against the making of a statutory will which divided the Patient's estate between the two sons in the ratio 25:75. The appeal was allowed.

The Patient is 86 and lacks capacity. She has 2 sons, A and D. The Patient's husband, A and D's father, had died in 2009. In summary, following Chancery Division proceedings that were settled, the court ruled that the Patient's matrimonial home and a piece of land had been procured by A and his wife from the father by undue influence and the conveyance of both were set aside and vested in the Patient. The Chancery order also declared that a deputy for property and affairs (MH) be appointed for the Patient and that a statutory will be applied for in the Court of Protection such that the Patient's estate be divided 50:50 between the two sons. However, the COP judge made a statutory will dividing the estate in the ratio 25:75 in favour of son D. Son A appealed, the grounds of appeal divided into two broad categories, namely:

1. the COP judge erred in principle and further or alternatively failed to take relevant features of the case into account in her approach to the Chancery Settlement Agreement, and its impact on the decision-making process under the MCA, and further or alternatively
2. the COP judge erred in principle and further or alternatively failed to take relevant features of the case into account, in a number of other ways.

The Court allowed the appeal. A thorough investigation of the circumstances relating to the making and approach to the settlement needed to be carried out. Such an investigation would have covered what, if any, statements the Patient made at that time about her testamentary wishes and feelings and so her intentions. The COP had judge erred in principle and further or alternatively failed to take relevant features of the case into account.

Editors comment
​Practitioners beware! This case highlights the difficulties when disputed facts are not dealt with appropriately, either in another jurisdiction or in the Court of Protection. The case emphasises the importance of ensuring that when a decision/compromise is made in another jurisdiction everyone must be aware that the Court of Protection will apply section 4 when assessing the circumstances and the decisions made on the Patient's behalf. When a judge in a different jurisdiction is dealing with a protected party, and any compromise is based on a decision from the Court of Protection, it is good practice for the judge to consider how the Court of Protection will be asked to approach such settlement [P.159 iii)]. It is important to identify the issues of fact and law.

The court was also critical as to how the Patient's wishes and feelings were ascertained. It is imperative, especially where there is a longstanding family dispute with allegations and counter allegations, that the Patient is seen by the professionals in the case without interference from family members. It was not good practice in this case to have one of the son's wife in the same house at the time the Patient was seen by the professionals. 

The court questioned whether the official solicitor was needed to act for the Patient in some cases, and that considerations ought to be given as to whether a professional deputy to act for the Patient might be appropriate.

Read the full text of the judgment on Bailii