This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the incapacitated person and members of their family must be strictly preserved. All persons, including representatives of the media must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

Case no. 11258461

Neutral citation number: [2015] EWCOP 91
IN THE MATTER OF LM
First Avenue House, 42-49 High Holborn, London, WC1V 6NP
8 December 2015
Before
District Judge Mort
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Between
K
Applicant
LM
Respondent

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Ms Rich (instructed by W Solicitors for the Applicant)
Mr Feltham (instructed by the Official Solicitor as litigation friend for LM)
Hearing date 7 December 2015

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Judgment
1.	This is an application by LM’s property and affairs deputy to execute a statutory will on behalf of LM. 
2.	LM is 29 years old. She is single with no issue. She is represented by the Official Solicitor.
3.	LM was assaulted by her birth mother when she was very young. As a consequence she was left with severely impaired levels of functioning. It is common ground that LM lacks testamentary capacity.
4.	LM was adopted by her parents PQ and RQ. She has one surviving sibling SQ. SQ has two daughters both of whom are minors.
5.	On 14/12/14 LM executed a Deed of Change of Name by which she changed her name.
6.	LM has no will. In the event of her death the intestacy rules would apply and her estate would pass equally between her parents PQ and RQ. 
7.	LM’s estate is significant. She received an award of £3,255,197 from the Criminal Injuries Compensation Authority (CICA) in September 2007. Of that sum £165,000 was awarded for pain and suffering and loss of amenity and £234,000 for loss of earnings. The remainder was awarded to cover the cost of LM’s care during her lifetime.
8.	The current value of LM’s assets is £2,710,700. She has income from all sources of £52,929 pa and expenditure of £139,938 pa.
9.	LM is additionally in receipt of an NHS care package at a cost of £110,032 pa. She will receive a further £400,000 in backdated funding. Thus her current care costs are covered. Her estate is therefore being largely preserved.
Positions of the parties
The Applicant
10.	The Applicant had proposed a statutory will in the following terms:
•	PQ and the partners of W solicitors to be appointed as executors and trustees
•	LM’s chattels to pass to PQ and RQ
•	Residue to be divided 25% to PQ, 25% to RQ, 25% to SQ and 25% to SQ’s children on attaining 25
•	Accrual clause to prevent any part of the estate passing to any person other than those referred to above
The Official Solicitor (on behalf of LM)
11.	The Official supports the application for a statutory will but proposes that a minimum of 20% of LM’s estate should pass to a charity or charities that would be relevant to LM. 
LM’s family
12.	LM’s family did not attend the hearing but they have made their views clear through the Applicant’s counsel. They concede that a gift of 5% of LM’s estate should be made to charity. The principle of a charitable gift is therefore conceded but not the extent of the gift.
13.	The point is also made that in the event no family member is acting as executor of LM’s estate the family would wish to be consulted as to their views of a suitable charitable object or objects for the gift. That is entirely reasonable and it is accepted that LM’s family should be involved in the nomination of such charity or charities.
The law
14.	S.18 of the MCA 2005 provides the court with jurisdiction for ‘the execution for LM of a will’.
15.	A decision made under the Act must be made in LM’s best interests.
16.	‘Best interests’ are not defined but S.4 expands on the determination of best interests. It is a structured decision making process. There is no hierarchy between the various factors although one or more may carry greater weight than others.
The parties’ submissions
17.	The positions of the parties are set out in their position statements. I do not propose to recite their submissions here. It is common ground that it is in LM’s best interests for a statutory will to be executed on her behalf.
Considerations
18.	In determining what is in LM’s best interests I must consider ‘all the relevant circumstances’ which are defined as those of which I am aware and which it would be reasonable to regard as relevant.
19.	In particular I must take the steps to which I am directed by S.4 of the Act.
20.	LM does not have testamentary capacity. Dr Crowe does not consider that she will regain or acquire that capacity. He states her lack of capacity is a ‘permanent condition’.
21.	I am satisfied that LM has been encouraged to participate in the decision making process insofar as she is able to do so. To the extent she has her input has been helpful.
22.	I must consider LM’s ‘past and present wishes and feelings’. Efforts have been made to try and ascertain LM’s wishes. A meeting took place on 16/11/15 between LM, Sarah Post (SP) a Court of Protection visitor and registered social worker, and the Applicant. The purpose of the meeting was to try and ascertain LM’s understanding of the purpose of a will and her wishes in relation thereto.
23.	 When SP asked LM what a will is she replied ‘a will is about when you die, and it’s about what’s going to happen to you and your things when you are dead’. LM explained this knowledge came from the TV.
24.	When asked what might happen if she didn’t make a will she replied ‘nobody would know what to do with my things’.
25.	SP concluded that LM had a general understanding of the effect and purpose of a will.
26.	When LM was asked about the level of her assets she was only able to say that she owned the possessions in her flat. She referred to her TV and Playstation. She did not know of any other assets. SP concluded that LM does not have knowledge of the nature and extent of her assets.
27.	LM was able to name her family as PQ, RQ, SQ and SQ’s two children. She was asked who she would like to leave her ‘things’ to and after a while pointed to their names.
28.	When asked if she would like to leave ‘things’ to charity LM responded with the names of charities she had seen on the TV but did not know if she would leave ‘things’ to them. 
29.	SP concluded that while LM has knowledge of persons who might have a reasonable claim to be beneficiaries she has no true understanding of the impact of the distribution of her estate.
30.	It is also apparent that LM has no understanding of the magnitude of her estate. Her mother considers that a discussion about this would cause LM emotional problems.
31.	The Visitor’s statement as to the detail and content of the meeting is largely confirmed by the applicant. However the applicant refers to LM being unsure about ‘monies’ as opposed to ‘things’ passing to charity. 
32.	The meeting was helpful in that it established that LM is aware of the effect and purpose of a will. She expressed a clear wish for her family to benefit from her estate. She was unable to express a wish in relation to a charitable bequest. She has no knowledge of the source of her estate or its extent.
33.	In the COP3 Dr Crowe indicated that LM had expressed a view in relation to the application namely ‘she explained a desire for other people other than her family to benefit from her estate should she die’. No further detail of what she may have meant by this is available.
34.	LM is unable to express any ‘beliefs and values’ which assist with the decision. However the Official Solicitor submits that the other factors to which LM would be likely to have regard are:
•	The size of her estate
•	The source of her wealth which comprises state funding in the form of an award from CICA
•	The non-means tested NHS funding of £110,032 pa which relieves her estate from substantial expenditure and thereby preserves it in a way which was not anticipated.
35.	The Official Solicitor accepts that LM wishes to make provision for her family who have shown extraordinary kindness to her. However he argues that LM’s care by the community and the source from which her estate is derived would be likely to lead her to make a gift to charity. This gift would reflect LM’s gratitude for the financial provision that she has received and to further the purposes for which that provision was made by benefitting the lives of others.
36.	On behalf of the Applicant it is argued that whilst LM has received State funds in the form of a CICA award and NHS continuing healthcare payments it does not follow that she would feel any obligation to leave money to charity. Furthermore it could reasonably be conjectured that if she did feel any such obligation she would feel it was met by the payment of inheritance tax which is a direct payment into public funds.
37.	I turn to consider the views of those ‘engaged in caring for LM or interested in (her) welfare’, namely her family.
38.	LM’s family oppose the Official Solicitor’s proposal and propose that a gift of 5% of the value of LM’s estate should be made to charity. It is not suggested that they are motivated by self interest. They are an important part of LM’s life. There can be no question that they have anything other than LM’s best interests at heart. As PQ has commented the family ‘care for (LM) because she is daughter and sister not for financial gain nor ‘glory”.
39.	PQ has declined to make any suggestions as to what charities LM may wish to name. She comments in her email of 28/9/15 ‘the only way of getting this kind of information from her will be to plant the idea in her mind – thus it will not be ‘her’ choice/wishes’.
40.	 I do not criticise the family for their position in relation to this application. PQ commented in her email of 28/9/15 that she feels ‘massively insulted’. I can understand that this litigation has proved stressful to them.
Conclusion
41.	In arriving at my decision I must consider all the relevant circumstances, namely all those of which I am aware and which it would be reasonable to regard as relevant, and in particular consider those factors in S.4 MCA 2005.
42.	Firstly LM would have regard to the love which she has for her family and they for her. Indeed she has expressed a clear wish to benefit them. That is entirely understandable given their selfless devotion to her.
43.	Secondly LM would be likely to consider the value of her estate and its source from state funding if she were able to do so. She would be likely to consider the annual award from NHS funding and its effect in preserving her estate. She would also be likely to wish to benefit others in the same way that she has benefitted from community help herself.
44.	I believe she would be likely to regard these as important factors to be weighed in the balance.
45.	I remind myself that LM’s family have conceded the principle of charitable gifting (but not the extent). 
46.	In my judgment 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. I am also 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. 
47.	Taking all the relevant circumstances into account the proportion passing to charity should be the 20% share proposed by the Official Solicitor. The remainder of LM’s estate shall be divided equally between PQ, RQ, SQ and SQ’s two daughters. I am satisfied this strikes a fair balance between LM’s family and charity and reflects an outcome which is in LM’s best interests having regard to all the factors involved in this case.
48.	Whilst LM’s family will be involved in the choice of charitable beneficiaries I do think it likely that LM would wish T to be one of the principal beneficiaries of her charitable gifting. I understand T is the charity of the NHS trust which is funding her annual care package.
49.	As far as costs are concerned I consider the general rule should apply.
50.	I have given approval for this judgment to be published at the request of the Official Solicitor.