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Court of Protection

Welcome to our Court of Protection blog featuring updates, guidance and news from the Wrigleys team.

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Lynne Bradey

Email: lynne.bradey@wrigleys.co.uk

Telephone: 0114 267 5584

Position: Partner

To what extent should a Statutory Will reflect the source of the funds in P’s estate and the intended purpose of those funds?

Case Details

LM received an award from the Criminal Injuries Compensation Authority (CICA) of which over £2.8m was awarded in respect of care fees.  The current value of her estate is just over £2.7m and the estate is largely being preserved due to the NHS care package she receives each year.

The Court of Protection have ordered that 20% of her estate should pass to charity, with the suggestion that the charity of the NHS trust which is funding the annual care package should be one of the beneficiaries.  The remainder of the estate should pass to LM’s adoptive family, who have shown devoted care to her since she was injured by her birth mother when she was very young..

The basis of this decision is that although when LM was interviewed in relation to her intentions  the only clear intention she expressed was to benefit her family, she did not have knowledge of the extent of her estate; believing that her only possessions were her TV and Playstation.

As LM did not have the capacity to understand the significant financial impact of any decision she might make about her Will, Judge Mort considered all the relevant circumstances under s4 Mental Capacity Act 2005.

These included the love LM held for her family and her clear wish to benefit them.  Judge Mort also believed that LM would be likely to regard the value of her estate, the fact that it had derived from the state through the CICA, and that it was being preserved by NHS funding as relevant if she were able to do so.  She would also be likely to wish to benefit others in the same way that she has benefited from the community help she has received.

Comment

In this case, the Official Solicitor argued that 20% of the estate should pass to charity. LM’s family argued for a smaller share of 5% of the estate to pass to charity based on the fact that there is no direct connection between receiving state funds or care by the community and feeling any obligation to leave money to charity.  They argued that LM may reasonably have felt that any obligation she had to the state would be met by the payment of inheritance tax.

This decision shows that judges in the Court of Protection will give considerable weight to the source of a testator’s wealth and how that wealth is being preserved when approving the execution of a Statutory Will.

If the state has provided funds for the care of an individual, that individual would usually be expected to use those funds for their care. If this is not possible, the Court will consider it a relevant factor that they would be likely to feel a moral obligation to use the funds for the care of other people in a similar position.

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