AW310/12
Opinion
of
John A
Baird, Esq., Advocate
Sheriff
of Glasgow and Strathkelvin at Glasgow
In the
case of
Applications
by the Guardian of P
Family
Background
- This case
involves the circumstances of three sisters, who according to all of the
information I have been given and understand, were devoted to each other
and to each other's welfare and wellbeing throughout their lives. They
worked hard and acquired some property through prudent saving and
investment. All three remained unmarried and had no issue. They lived
separately but close to each other and all three owned their own homes.
They were all particularly religious people; they exemplified the
teachings of their religion, not just by attending worship faithfully, but
by the care and concern they showed to each other and for others. In
particular, they recognised the need for financial support of charitable
causes and of the religious orders and organisations which provide charity
and help, and also for the need for financial support of those who
minister to others as members of such charitable organisations and as
ministers of religion, and who in most cases do so with very little in the
way of financial means.
- Late in life,
one of the sisters (P), the adult in this case, married, her husband having
an extended existing family, albeit no children. Her husband was a member
of a well known and respected family, not just in the west of Scotland, and on his untimely death, she acquired further property by inheritance. One of
her own sisters had died also, and after her husband's death, as I
understand it, she returned to live back in Glasgow and acquired a house
close to that of her remaining sister (N), to whom she remained devoted.
That sister, although owning heritable property, was less well off than P,
and it is clear to me that P knew that and was determined to ensure that N
would be as well provided for financially as she, P, could manage. The
expression "love favour and affection" is a familiar one in conveyancing
and executry work in connection with arrangements made by family members
to assist other family members, and seldom has it had more actual meaning
than the circumstances demonstrated in this case.
Background to
the Present Application
- Sadly, P
developed dementia and on 23 November 2011, I appointed the applicant to
be the guardian to the adult, her aunt, then aged 74 (now 75). I was
satisfied then that the adult is an adult with incapacity as defined in
the Adults with Incapacity (Scotland) Act 2000, that the principles of the
Act were complied with, and that the applicant was suitable for
appointment as guardian. Had I known the full detail that I do now, I may
not have been persuaded that the appointee was suitable, having regard to
the potential for conflict of interest. The order was granted for a period
of 5 years and included powers relating both to the welfare and property
and financial affairs of the adult. The adult was at that time, and still
is, residing in a care home, and the original application sought power to
sell the house in which the adult had latterly lived.
- On 7 and 10
September 2012, the applicant presented to the court two separate
applications in appropriate form, one of which was to vary the previous
order by authorising the applicant to sell or otherwise deal with two
additional heritable properties which it had been discovered were also
owned by the adult, and the other of which sought permission to revoke a
specific bequest which was contained in the adult's will.
Giving Authority
to Alter, Amend, or Draft a Will
- I have
previously stated that I consider that under the provisions of the Act,
the court is empowered, in appropriate circumstances, to authorise the
making of amendments or additions to the will of an adult who is still
living but has lost the capacity to effect such changes herself. I have
also previously stated that I believe that the court is empowered to
authorise the making of a will on behalf of an adult, where the taking of
such a step would appear to be prudent and justified. Of course, if deciding
to do so, the court must be bound by the guiding principles of the Act,
but in all such cases, I have made it abundantly clear that I would be
prepared to do so only if presented with clear, incontrovertible,
and unequivocal evidence of the wishes and intentions of the testator (the
adult), and that to do so would result in benefit as prescribed in the
Act.
- To that end,
it is not appropriate to indicate the circumstances where it may be
appropriate to authorise the taking of such steps, but might be helpful to
indicate where it may be thought not appropriate to do so.
- As an example
of the latter, earlier this year I was presented with an application to
execute a will on behalf of an elderly gentleman who was now an adult with
incapacity. He was unmarried and had no issue, but a number of relatives
through his brother. He had never made a will. The proposal was to do so
now on his behalf, and to provide for a distribution of his property on
his death which would be exactly in the same manner, and in the same
proportions, as it would devolve on intestacy. What, I asked at the time,
could be said to be the benefit to the adult of doing that ? The only
answer was that it would provide for an executor-nominate.
- Interestingly,
the application also sought to include a clause donating the remains of
the testator on death to medical science, it being represented that that
had been known to have been a wish regularly expressed by the adult. After
the application was lodged, it was realised by the applicant's solicitors
that authorisation to allow for a will containing such a bequest is not in
fact competent, as a guardian appointed under the Act may not make such a
request on behalf of the adult (S64(2)(c)), and in any event, to emphasise
the point I have repeatedly made about clear and incontrovertible evidence
of the wishes of the testator, it later transpired that the adult may
well have said that not out of a deep seated desire to assist medical
science but out of an understandable (but perhaps less noble) desire to
save the expense of a funeral.
- In fact, that
application was then withdrawn, but only after I had indicated that if the
avoidance of the need to present a petition for the appointment of an
executor-dative was the only benefit to the adult which would accrue, such
intervention may well not amount to the least restrictive option in
relation to the freedom of the adult consistent with the purpose of the
intervention (S1(3)).
The Need for
Further Powers in the Present Case
- It is not
entirely clear to me why the full extent of P's assets was not known at
the time of the original application, for reasons which will perhaps
become clear, but in any event, it had been discovered that she had an
interest in a timeshare in a property situated abroad, and that she also
owned a one half share of the house which was being lived in by her sister
N. As I say, I do not really know why that was not taken into account
originally, as it appears to have been well known by the family, but in
any event, the fact that the adult P owned her sister N's home jointly
with N is completely indicative of the extent to which P had always been
prepared to look out for, and after, N. It may be that N may not have had
the resources to fund the purchase completely out of her own funds, and P
had assisted in enabling that.
The First of the
New Applications
- This seeks to
vary the powers granted in the original order by adding reference to the
adult's half share in the house owned by her sister N and allowing the
guardian to manage that, including by sale. It also seeks to vary the
original powers in order to allow disposal of the adult's interest in her
timeshare property abroad. It has transpired that, unhappily, N has also
now succumbed to the effects of dementia, and she too is now resident in a
care home. She will not be able to return to her home and it will require
to be sold, so for obvious reasons, P's guardian needs to have the power
to sell her one half share of it.
- If that was
all there was to it, there would be no difficulty. It is not. The
applicant in the present applications is P's guardian, appointed by me.
She is also the niece of N. I have been advised that the applicant also
holds a Power of Attorney for N, that having been properly granted and
registered before N lost capacity further to order her affairs. Further,
the applicant is named as executor-nominate in the will of her aunt P, the
adult, and as the executor-nominate in the will of her aunt N, in the
event of the first named such executors in N's will having pre-deceased or
become unable to act, which has in fact happened (the first named
executors were her two sisters, one of whom has pre-deceased and the other
of whom is P, who of course no longer has the capacity to act). The
applicant is also a named and prospective beneficiary of the estates of
both P and N.
The Second of
the New Applications
- But that is
not all, because the purpose of the second application is to create a
discretionary trust of which the present applicant will be one of the two
trustees, the other being the applicant's sister, who is also a
prospective beneficiary. The applicant therefore comes before the court
wearing no fewer than 7 different hats or at least prospectively so, and
it is obvious, at least to me, that there is the potential for conflict of
interest.
- In the second
application, she asks the court to allow her, qua guardian of P, to
prepare and execute a codicil to the will of P which will revoke a
specific bequest contained in that will.
- As I say
repeatedly, I am prepared to do that only on clear and incontrovertible
evidence as to the intentions and wishes of the testator. What is of the
highest significance in this case is that I have evidence of the
clear and incontrovertible intention of the testator. P instructed and signed
a will as recently as 6 March 2009, at which time she was 71 years old.
That will is very specific in its terms. She makes bequests of specified
sums of money to nine different family members. She then makes a further
bequest of a larger sum to one family member, who is a member of a
religious order, with the residue of that bequest going to the order
itself. There then follows clause 9 in which she bequeaths the sum of
£50,000 and also her one half share in N's house to her sister N. The will
goes on to bequeath her interest in the said timeshare to the present
applicant, and divides the residue amongst all of her other nephews and
nieces, with a specific provision for a further bequest of 30% of the
residue to go to the present applicant.
- This application
asks me to revoke the clause which leaves the sum of £50,000 and the half
share of N's house to N. In fact, the title to N's house is in the names
of all 3 sisters with a survivorship clause, so that in the event of P's
death, the whole right and title to the property would vest in N anyway,
but of course P is not dead. The value of P's half share is put at
£80,000. What I am asked to do, therefore, is to revoke a provision made
as recently as March 2009 in which P sought to make a substantial provision
in favour of N, to the extent of the equivalent of approximately £130,000.
Even the applicant accepted explicitly that P made that provision so that
her sister N would be well able to look after herself in the event of P's
death. It is completely clear that in doing so, P followed the pattern of
devotion to her sister and her welfare on which I have already commented.
- So why am I
asked to allow that prospective bequest to be revoked ? The answer is; to
suit the interests of the applicant and all the other nephews and nieces.
- I now mention
the specific averments made in order to support this proposal, together
with further comments made at the hearing.
- The
application was accompanied by a report (AWI[10]) from a solicitor, not of
the firm who act for the applicant. That solicitor, in commenting on how
the proposed order will benefit the adult ( N.B. - the question is how it
will benefit the adult) says, "The adult will benefit as it is
believed that if the adult had not been incapable of managing her own affairs
that she would have wished to have the steps taken proposed to preserve
the assets of the family and to pass on to her beneficiaries without risk
of the funds being dissipated". It then goes on to say, "Unless the order
is made the status quo shall prevail and if the adult passes away
the subjects will pass to [N] and may be dissipated in care costs". I note
with considerable concern the use, twice, of the word "dissipated" in
connection with the need to pay care costs for N.
- In the
application itself, it narrates that as N is now herself in care, with an
ongoing obligation to pay care costs, the adult P, if still capable, would
in those circumstances have been appropriately advised not to make the
bequest to N which she did make, as recently as 2009, and that if P dies
and N inherits as P intended, these assets will be taken into account for
the purposes of a financial assessment of N's means to afford to pay for
care. N was born in 1927 and is now 85, 10 years older than P. The writ
goes on to say "The result is that the legacy and bequest will be
effectively immediately lost and will not benefit the family due to the
impact of the financial assessment".
- That averment
is pretty breathtaking. The test for me to satisfy is benefit; the only
benefit being talked about there is benefit to the family, and pays no
heed to the stated intent of P, as recently as 2009, or to the benefit
which N would derive if she inherited such assets. They would pay for her
care. It seems tolerably clear to me that at the time when P made that
will, she must have had in contemplation the possibility that neither she
nor her sister would be able to continue to live independently. These are
intelligent and respectable individuals. "Benefit" need not be tangible;
assuring peace of mind can constitute benefit. When P made that
prospective provision in 2009, is it not clear that she intended thereby
to assist her sister N in the remainder of her life so that she could live
in comfort and dignity ? Is it conceivable that P would readily consent to
revoking that bequest, just because N is now in a care home ? They were
both intimately aware of each other's circumstances. The effect of this proposal
may be that N's assets do not cover the fees, and that she may require to
be moved, at that age, to less salubrious surroundings, with all of the
upheaval involved, and with the burden of payment falling on the state.
Where is the benefit to the adult P from achieving that outcome ? And is
that really what she would wish ?
- In the course
of the hearing, the applicant expressed the view that she, and I do not
know if the other prospective beneficiaries shared this view (but would be
surprised if they did), did not want to see the money which P left to N,
assuming P's death, to be "frittered away" in care costs.
- Let me make
this point very clearly; I do not regard the expenditure of necessary sums
in the payment of care costs to make the remaining life of an elderly and
worthy lady one which is as comfortable and dignified as possible to be
"dissipation", "loss" or "frittering away" of assets; quite the contrary.
It would be a proper use of her resources, and one which I have to assume
would have been in the contemplation of the adult when she made that
prospective provision.
- When I asked
the applicant at the hearing what evidence there was for the belief that P
would have revoked a bequest made only 3 years earlier if she had known
that N would require to live in care, I was told that both sisters held to
the view that the "state should pay for everything" and that they were
brought up in the philosophy of the Health Service looking after us "from
cradle to grave". I was given no written material from which I could
discern if the adult had ever said that or not, but as I have pointed out,
these ladies are of such an age that they spent many years of their lives before
that philosophy emerged, and have lived to an age when they well knew that
it no longer applies.
- I was told
that the intention was to put the value of the bequest into a form of discretionary
trust, managed by the present applicant and her own sister. It would
therefore not form part of N's assets. Although there was the merest hint
that the trustees might approve the use of some of the money for the
benefit of N, it is completely clear that the whole purpose of this is to
remove that substantial sum from the available assets of N, in order to
preserve it for the benefit of all of the remaining beneficiaries, who of
course include both the applicant and her sister, the proposed trustees.
- I can say that
in terms because the writ itself declares that the granting of the
application will have key benefits including "to more effectively
implement the understood testamentary wishes of the adult as well as the
understood testamentary wishes of [N]" and that "due to the personal
financial circumstances of [N], to avoid the effect of the adult's
testamentary writings reducing the value of assets from which the adult's
family can ultimately benefit". That is all quite blatant. I may also add
that the adult's testamentary writings are completely clear; there is no
ambiguity. Further, no evidence was presented regarding the "understood
testamentary wishes of [N]". They are clear also. She wrote her will in
1976 and had over 35 years after that in which to say something different
if she had wished to.
- So, who is it
who is saying that the adult would have wanted to cut her sister out of
her will ? It is the applicant. That brings me to certain other averments
and documents which are condescended upon. Article 6 of the writ says
this: "The adult and [N] have entered into a Minute of Agreement in
relationship to the survivorship destination so as to renounce their
respective interests in the destination, dated 16 May 2012 and registered
for preservation ... in the Books of Council and Session on 21 May 2012, a
copy of which is produced herewith and referred to for its full terms".
- That is a
remarkable averment. Neither the adult nor her sister N did any such
thing. That document is produced. It is a purported agreement between the
adult and her sister, but neither of them had anything to do with the
reaching of any such agreement. Neither of them has the remotest idea of
the proposition contained in this application, or is aware of the content
of that document. I have seen it. It is in fact a document entered into between
the applicant, qua guardian of the adult P, and herself, qua
attorney of N. It represents in effect that the applicant has agreed with
herself that the agreement is in the interests of P and N. It also, in
clause (A), states that "[P] and [N] have now agreed that they wish to
document their agreement as to the result of the taking effect of the
destination contained in the Disposition" (i.e. the survivorship clause in
the tile to N's house) and goes on to say that P and N immediately
renounce any interest or entitlement they may have in the event of the
survivorship destination taking effect. The document is then signed twice,
both signatures being that of the present applicant. She signed it in her
own name qua guardian of P and in her own name again qua
attorney of N. Once again, while it may be that the applicant has the
power to enter such arrangements on behalf of either, or indeed both,
parties to it, it is simply not correct to say that each individual sister
has actually agreed to anything.
- In any event,
other than it being represented that this is an exercise in good estate
planning, I have been presented with no evidence as to the wishes of N,
and no satisfactory evidence as to the wishes of P.
- It is of
course correct that the bequest under consideration is only prospective;
it has not vested. Both parties are still alive. But I am being asked to
revoke it in the circumstances set out upon the basis that the adult would
have been given advice to do so on account of the change in the
circumstances of her sister N. It is also said that the granting of the
order would assist in implementing and achieving the ultimate wishes of
both the adult and N by providing and protecting their estates for their
nieces and nephews.
The Potential
Conflict of Interest on the Part of the Applicant
- I cannot let
this pass without referring again to the multiplicity of positions and
prospective positions held by the applicant, who is herself a professional
person of standing in the community. I specifically raised the question
of conflict of interest and was told that she had been advised throughout
by her present solicitors, who present this application, and that she had
not sought, or apparently been advised to seek, separate advice from any
other firm, having regard to the many different interests which she
represents. It is for others to judge whether there is such a conflict as
would have necessitated the taking of separate advice.
The Decision
- There is no
difficulty in approving the addition of the powers to deal with the two
additional pieces of heritable property now known to be owned by the
adult. That application, the first one, will be granted.
- As to the
second application, seeking the power to add a codicil which has the
effect of revoking a specific legacy made by the adult as recently as
2009, I have no hesitation in refusing that application. I have not come
anywhere close to being persuaded that the wishes of the adult P,
expressed clearly and as recently as 2009, no longer have effect. They are
expressed clearly, unambiguously and incontrovertibly. I do not for one
minute accept that this adult would have chosen to disinherit her sister,
leading to the kind of situation which may well follow from that. The
second application wholly fails to persuade me that the tests I have to
apply as set out in the core principles of the Act would be satisfied by
the granting of this application. It may be that the advice tendered by
the solicitors in this case is proper, and would represent proper estate
planning. I do not accept that this adult would benefit from the proposed
step, and in fact I find that the decision of the applicant to proceed
with this application, even if the advice was correct, is deeply
disappointing.
Expenses
- For the
reasons set out, I am prepared to award the expenses in connection with
the making of the first application, to add the additional powers to sell
the two other heritable properties, out of the adult's estate, but am not
prepared to allow that with regard to the second application to add the
codicil. The applicant must bear the expenses of the making of that
application from her own resources.
