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Is the Court of Protection bound by the result of other litigation?

20 January 2017

Not in this case, which involved a statutory will application brought in accordance with a previous court-approved compromise agreement


This case is a delicate balancing act where a vulnerable elderly lady wishes to disinherit one of her sons.

He has restored property worth over £2m to her.  He has agreed a compromise to a claim of undue influence saving her significant costs.  This included the giving of an undertaking by the elderly lady’s deputy to make a Statutory Will application in certain terms.

When considering a Statutory Will, the Court can take into account the conduct of the other parties in previous litigation under MCA2005 s 4 (6) (c).  It will do so if it is in the best interests of a vulnerable person.

Any agreement made in previous litigation does not bind the Court.

Case Details

J is an 86 year old widow with two sons, A and D.

On her husband’s death in 2009, J was the sole beneficiary of his estate.

She discovered that A had influenced her husband to make a lifetime transfer of the family home and other land into A’s name.  Her husband had lacked the mental capacity to make these transfers.

J made a Will disinheriting A in 2010 and brought legal proceedings against him in 2012.  During the course of these legal proceedings, J became incapable of dealing with her property and affairs.

A Court-approved compromise agreement in the legal proceedings was reached by J’s litigation friend including the following terms:

a) the family home and other land was restored to J;
b) J’s deputy undertook to make an application to the Court of Protection for a Statutory Will dividing J’s estate equally between A and D; and
c) A paid 55% of J’s costs.

It was agreed by all parties in the Court of Protection application that an undertaking to apply to the Court of Protection for a Statutory Will in certain terms does not bind the Court of Protection.

Judge Walden-Smith outlines the legal framework followed by the Court when considering a Statutory Will.  Under MCA 2005 s4 (6), it must consider:

a) J’s past and present wishes and feelings (and in particular any relevant written statement made by her when she had capacity);
b) The beliefs and values that would be likely to influence her decision if she had capacity; and
c) The other factors that she would be likely to consider if she were able to do so.

Under MCA 2005 s4 (7), the Court must take into account the views of any deputy and anyone engaged with care or interested in J’s welfare.  J’s deputy made the application but did not have a strong view as to the devolution of J’s estate.

Despite her dementia J held a “clear and dearly held” wish to disinherit A due to the breakdown in their relationship after her husband’s death.  Her past wishes were shown by a written statement in the 2012 litigation proceedings stating that when her husband was alive they had treated A and D equally.

Judge Walden-Smith referred to Re P [2009] EWHC 163 and Re M [2009] EWHC 2525 (Fam).  J’s wishes and feelings are a significant factor to which the Court must give close regard.

The amount of weight attached to J’s wishes should be determined on the facts of the case, taking into account factors including the:

a) degree of her incapacity;
b) consistency of her views,
c) impact of not following those views,
d) practicality of implementing those views; and
e) outcome of following those views being in J’s best interests.

The beliefs and values which would influence J’s decision when making a Will and the factors she would consider if she were able to do so included:

Against A, that:

a) A had taken the family home and other land, which had since been restored to J;
b) J took expensive court proceedings against A;
c) J’s relationship with A had broken down; and
d) A had tried to evict J from the family home and tried to hit her with a stick.

For A, that:

e) A saved legal costs for J by agreeing a compromise in legal proceedings;
f) A was treated equally by his parents; and
g) Traditionally, an estate would be divided equally between the two sons.


Judge Walden-Smith concluded that it is in J’s best interest for a Statutory Will to be executed with three-quarters of the estate for D and one-quarter for A, as recommended by the Official Solicitor as litigation friend for J.

A separate issue relating to the ownership of some of the land restored to J was dealt with and a transfer of that land to a third party was authorised by the Court.

J should not be vulnerable to future litigation.  There was no breach of the order made in the previous litigation because the J’s deputy did exactly what he was required to do in bringing the Statutory Will application in the terms agreed.

Case Report: J (A Protected Party), Re [2016] EWCOP 52 (18 November 2016)



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