The step-mother, the daughter, the Court of Protection and Peter Jones (no, not that one!)

Summary

Here, the Court of Protection was asked to decide how a millionaire’s estate should be divided between a daughter from a previous marriage and his second wife.

We comment on the case at the bottom of this post.

Pseudonym – Peter Jones

Rather than the usual approach of using letters to refer to the incapacitated person in the judgment, Judge Eldergill opted instead for a pseudonym and the one he chose was Peter Jones; perhaps he is a fan of Dragons’ Den.

Facts

The application for the Statutory Will was made by Mr Jones’ joint and several Deputies for property and affairs. These are Susan Jones and Roy Mathias, a solicitor. Anne Dawson, a daughter from a previous relationship, is Mr Jones’ only child. Mr Jones also has siblings, nephews and nieces. He suffers from dementia and there was no dispute at the hearing that he lacks capacity to make a Statutory Will or a gift.

Mr Jones currently resides in the Mediterranean, in the country where he was born. Mrs Jones took him there in March 2014 for a holiday but the Judge found that Mrs Jones had no intention of returning him to the UK. Prior to that he was living in a care home in London.

Domicile was obviously an issue in this case. It was accepted that because Mr Jones was domiciled in the UK before he lost capacity he will retain his English domicile choice because he cannot perform the necessary intention to change his domicile. If Mrs Jones stays where she is however then her domicile will change and spouse relief for Inheritance Tax would not be available.

Mr Jones’ daughter, Anne, is 56 years old and lives in Canada. She has had a number of problems over the years involving addiction and mental health problems. At the time of the hearing she had serious financial difficulties, had been made bankrupt and was dependant on means tested benefits. Mr Jones and her mother had separated when Anne was a child. Anne met her father briefly in London around 1971 when she was about 13. She stayed with him and Mrs Jones when she was about 23 but had not seen him again until this year although they had been in contact by telephone. Not surprisingly, the parties felt that anything that was given to Anne might need to go into some sort of trust structure.

Mr Jones seems to have been involved in some creative tax activity in his life. At the time of the hearing, the Lichtenstein Disclosure facility was being used by the Deputies to put things right. Once that was taken into account, Mr Jones’ estate will be about £2.3m.

Mr Jones’ annual outgoings including care are likely to be about £60,000 to £70,000 per year. He had income of just over £21,000 and if the family home in London was rented out, because Mr and Mrs Jones had moved to the Mediterranean, this would generate a further £20,000. The Court therefore felt that this, along with the investment of the cash assets meant that it was unlikely Mr Jones’ estate would be diminished by care fees.

Mr Jones, like many people who probably have more need to make a Will than most, had never made one. If the Court did not put a Will in place, Mrs Jones would receive £250,000 outright plus the personal chattels and Mrs Jones and Anne would have received half of the rest of the estate each. The Court confirmed that the Statutory Will would not affect any land in the Mediterranean. What would happen to that land was not entirely clear.

Not surprisingly, Mrs Jones wanted to restrict provision for Anne to £50,000. Because of the potential conflict between Mrs Jones’ position as the wife and joint Deputy, the Deputies were allowed to make separate submissions at the final hearing. The professional Deputy suggested that Anne should receive £225,000. The Official Solicitor suggested that Anne ought to get approximately £625,000.

The Judge decided it was in Mr Jones’ best interests to make a Statutory Will. First of all it would allow independent professional executors to deal with the estate. The administration was likely to be far from straightforward, particularly while the offshore tax issues were being sorted out. The Judge also thought that Anne would get too much under the intestacy rules compared to Mrs Jones.

The Judge commented that,
“The onset of mental incapacity is not an opportunity for moral correction.

That still leaves room, of course, for the case at the other end of the spectrum where the court authorises a statutory Will which makes good the omissions of P but does not seek to correct their considered acts and decisions. For various reasons all of us never quite get round to doing many of the things we know we ought to do. Making a Will may be one of them. Most people would wish to make a Will if they knew both that they were going to be incapacitated by a stroke tomorrow and the consequences of dying intestate or leaving a defective Will. They would seek to avoid the sometimes arbitrary nature of intestacy, the consequences of dying intestate on those dear to them, the resulting inconvenience and worry for their family, the possibility of family discord and avoidable litigation arising from a failure to make clear their intentions.

This, in the absence of clear evidence to the contrary, one is entitled to assume that had P given proper thought to their pending incapacity and intestacy he or she would have wanted to put their house in order and make a Will. They would want to do the right thing and not to leave family members with such unintended consequences and problems. Hence, it seems to me, the case law emphasises that adult autonomy is not the only consideration and that in many cases and for many people it is in their best interests that they be remembered with affection by their family and has having done ‘the right thing’ by a Will.

That is a long winded way of saying that in the absence of evidence to the contrary most people want to do the right thing by their family and loved ones and a judge is entitled to take that view, in the absence of evidence to the contrary and any relevant legal considerations.

I have taken the time to set out the view I have taken because it was in issue and there was considerable evidence that Mr Jones often did what many people would regard as ‘the wrong thing’ in respect of his estate. He secreted his money abroad, did not pay his taxes, did not provide for his daughter and did not make a Will providing for his wife’s future despite having 40 years to do so and being advised by a friend of the need“.

There was evidence from Mr Jones’ brother that Mr Jones had told the brother that he intended to include both Anne and Mrs Jones in a Will.

The Judge formed rather different impressions of Anne and Mrs Jones:

“I did not find Mrs Jones always to be a convincing witness. I thought that some of her evidence was contradictory, inconsistent or evasive. At one stage she seemed to deny that it had been her application to exclude Ms Dawson from the Will. Mr Mathias’s counsel told me that Mrs Jones understood the nature of the application and at all material times was assisted by her nephew in the Mediterranean who is a judge.

In contract, I was impressed by Ms Dawson’s sincerity when she gave evidence by videolink. The Official Solicitor also agreed that she came across as an honest witness“.

Essentially, Mrs Jones’ argument was that because Mr Jones had not seen his daughter over many years, the value he placed on their relationship was low. To give a flavour of the level of detail the Judge had to go into;

“I am satisfied that Ms Dawson has always loved her father and that she had a close and loving relationship with him until they were separated. Her mother and her mother’s new partner then tried to prevent her from having contact with him. After 1983, the absence of visits by her is explained by her sensitivity, fragile mental health and financial circumstances, and by her father’s unapproachability, rather than by a lack of interest on her part.

Ms Dawson impressed me as a sensitive, timid person who found her father rather intimidating. To use Mrs Jones’ words, he was ‘old-fashioned and authoritarian’; he was not an approachable man. Quite frequently she would telephone him to wish him happy birthday or on New Year’s Day. However she was too embarrassed by her circumstances to confide in him her financial troubles and eventual bankruptcy, her addiction and mental health problems and her need for his support. She wanted him to think well of her. She did not want to risk the hurt that he would view her as a failure; ‘Even though my dad may have paid for expenses if I let him, I did not want him to know I had no money and would not pay for myself’. She did not tell him of her prescription drug problem. He was not the type of man you tell that to; ‘I’d never tell my father that I was taking drugs … no way. It’s something you don’t do’.

On the one hand, I am satisfied that he loved his daughter in his own way but, as Mrs Jones said, ‘he never [really] knew how to love a child’. I accept that he told his brother that he intended to include both his wife and daughter in a Will. I also accept his daughter’s evidence that when she went to England in 1983 with a passport in the name of Dawson he told her that she would be taken care of and not to worry. If, as seems likely, he knew or suspected from her speech or demeanour that sometimes she was under the influence of alcohol or drugs it did not lead him to break off all contact with her or to refuse her calls. I do not accept that he refused to talk to her by telephone and would keep their conversations short. Similarly, therefore, I reject his wife’s oral evidence that he would now ‘be happy’ not to help his daughter if he knew of her present circumstances ‘because she takes drugs and probably spends all her money on drugs, that’s probably why she hasn’t got any money’.

If her argument is that his wishes and feelings about who should receive what proportion of his estate may be inferred from his behaviour towards the person in question then the context is that I find his behaviour towards his wife was also lacking in delicacy:

a) Mr and Mrs Jones’ marriage was an unhappy one as she herself told me.
b) On occasion he was violent and treated her quite badly.
c) She considered leaving her husband.
d) Her husband was depressed at times.
e) He did not discuss his financial affairs with her.
f) He did not make a Will in her favour so as to secure her financial security in the future. His failure to make a Will provided very well for Ms Dawson’s future needs but not for his wife’s“.

The Judge drew a contrast between Mr Jones’ “need to be in control and to control” in the past and his life as it was at the date of the hearing, “there is evidence that Mr Jones’ beliefs, wishes and feelings have changed as his life draws towards a close following the onset of illness and a period of severe depression. He is no longer in control of his finances and self-care and this has been extremely distressing for him. He has slowly and painfully had to adjust to this new reality of relative powerlessness and that what he has gathered will pass to others sooner rather than later”.

When the Official Solicitor spoke to Mr Jones about his daughter “he perked up at the mention of her name and was upset that they had lost touch”. When the Official Solicitor asked if he wanted to see her, he was immediate in his response and said ‘of course, she is my daughter’. I asked if he could tell me something about her and he said that he did not know where she was. I said I thought she lived a long distance away in another country. Mr Jones said ‘maybe’ and I said I thought it was Canada? He seemed to recognise this but said he did not know why she had left and started to get upset. He said he did not know where she was. I said if Anne wanted to get in touch would he like that and he said yes. I said I thought she did want to get in touch and I would pass on the message. He said he would like that”.

Against this very difficult family background, the details of which unfortunately had to be rehearsed by the Judge, the Court made their decision. A Statutory Will was put in place for Mr Jones. Neutral and independent professional executors were appointed. Mrs Jones received around 75% of the estate and Anne around 25% of the estate. If one dies before the other then the other will get the whole estate. Anne’s entitlement would be about £625,000. The Judge said that he was in favour of a proportion of this being given to Anne now to allow her to buy a home outside the city where she lives. This would be a disregarded asset for means tested benefits purposes. The parties were sent away to agree how the lifetime gift and the Will should be structured. The result was that Anne was to receive a £200,000 gift in trust immediately. The Deputy was authorised to execute a Statutory Will which left Anne £650,000 less the amount of the lifetime gift to the same trust. The rest went to Mrs Jones. Mrs Jones was to receive £200,000 now to allow her to build and furnish a property on Mr Jones’ land in the Mediterranean. She would hold that property entirely on trust for Mr Jones.

Not surprisingly, the Judge also decided that the present deputyship arrangement needed to be changed. An independent professional deputy will be appointed.

Comment – this case illustrates that the property and financial affairs jurisdiction of the Court of Protection is that much more than the money. The amount of history and emotion in this case shows what a difficult job the Court has when trying to decide how a person’s property should be divided, in this case between the daughter from a previous relationship and a current wife.

July 2015

Jones, Re [2014] EWCOP 59 (12 November 2014)