Re LM [2015] EWCOP 91

​​Application to execute a statutory will on behalf of LM, whose assets were significant following the receipt of an award from the Criminal Injuries Compensation Authority. The main question here was the percentage of her estate that should go to charity.

Background
LM was adopted following an unstable start to her life when she was assaulted by her birth mother at a young age. This assault left her with severely impaired levels of functioning. This was a permanent condition. Consequently, LM lacked testamentary capacity, otherwise known as the legal and mental ability to make or alter a valid will.

In September 2007, LM was awarded £3,255,197 from the Criminal Injuries Compensation Authority to compensate her for the injuries sustained and provide for her continued care. The remainder of her estate comprises of assets valued at £2,710,700. Her income is £52,929 pa and expenditure is £139,938 pa. She also receives a NHS care package of £110,032 pa. She will receive a further £400,000 in backdated funding.

LM has not made a will and therefore, in the event of her death, intestacy rules apply meaning her estate would pass to her adoptive parents.

The Applicant argued that a statutory will should be written setting out the appointment of executors and trustees, that LM’s chattels would pass to her adoptive parents, the residue to be divided into 25% equal shares between the family members and that an accrual clause should be drafted to prevent the estate passing to anyone other than those named.

The Official Solicitor agreed with the drafting of a statutory will but submitted that at least 20% of LM’s estate should pass to a charity relevant to LM.

LM’s family, through the applicant, conceded that 5% of the estate only should pass to charity. The issue therefore was the size of any gift to a charity or charities from LM’s estate.

The Law
A decision, as to the execution of LM’s will, must be made in LM’s best interests in accordance with Section 4 of the Mental Capacity Act 2005. 

Section 18 of the Mental Capacity Act 2005 grants jurisdiction for the court to execute LM’s will (relevant parts duplicated below):

(1) The powers under section 16 as respects P's property and affairs extend in particular to--
the carrying out of any contract entered into by P;
(i) the execution for P of a will;
(k) the conduct of legal proceedings in P's name or on P's behalf.
(2) No will may be made under subsection (1)(i) at a time when P has not reached 18.
(3) The powers under section 16 as respects any other matter relating to P's property and affairs may be exercised even though P has not reached 16, if the court considers it likely that P will still lack capacity to make decisions in respect of that matter when he reaches 18.

Decision
District Judge Mort concluded at paragraph 46 of the judgment that “it would be in LM’s best interests for the majority of her estate to be divided between her family in recognition of their love and devotion.” Additionally, the court was satisfied that: “LM would wish to gift a proportion of her estate for charitable purposes in recognition of the considerable help she has received from the community.” 

When assessing the percentage of the estate to be gifted to charity, the recommendation of 20% as submitted by the Official Solicitor was accepted. The rest of the estate was then to be divided equally between named family members. District Judge Mort considered this reflected LM’s best interests and was a fair balance between LM’s family and charity.

Discussion
This case illustrates the difficulty with obtaining concrete wishes and feelings from a P who lacks capacity as a result of a permanent condition. When LM was asked if she would like to leave her ‘things’ to charity, she responded with names of charities she had seen on the TV but did not know whether she would leave ‘things’ to them. 

Clearly, District Judge Mort has relied heavily on the submissions of the Official Solicitor in reaching a conclusion on LM’s wishes and feelings. It was submitted that LM would no doubt wish to give back to society given the help she has received. As argued by the applicant we could speculate that LM might feel any such obligation, if any, was met by the payment of inheritance tax directly into the public funds.

This decision shows the importance of the role of the Official Solicitor in upholding the most likely conclusion regarding the wishes and feelings of a P.

Read the full text of the jugdment on Bailii