(1) There is no presumption that the Court of Protection should not direct the execution of a statutory will in any case where the validity of an earlier will is in dispute. Such an approach would tend to elevate one factor (a previous written statement) over all others, contrary to the structured decision-making process required by the MCA 2005. (2) On the facts, the doubts about the validity of the previous wills were sufficient to conclude that D's best interests would be served by the execution of a statutory will to prevent her estate being eroded, and her memory being tainted, by a bitter contested probate dispute.
The following is an extract from Judiciary of England and Wales, 'Court of Protection Report 2010' (July 2011).
16. VAC v JAD & Ors.(HH Judge Hodge QC, 16 August 2010). www.bailii.org/ew/cases/EWHC/Ch/2010/2159.html JAD was born in 1922, and has three children: VAC, FKD, and LJS. She suffered a stroke in 2003. In 2007 FKD sought to register an EPA in which JAD had appointed him as her sole attorney. Although it was purportedly signed by her on 26 January 2003, the prescribed form was marked “Crown Copyright 2005, printed September 2005.” FKD and his sister LJS were required to pay back to their mother’s estate assets worth £46,000 and £85,000 which they were looking after for her, and have done so.
JAD had made a will in 1995 leaving everything to her three children; a further will in 2004, leaving everything to LJS; and another will in 2006 leaving her residuary estate equally between FKD and LJS. In May 2009 VAC applied to the Court of Protection for an order authorising the professional deputy to execute a statutory will on behalf of JAD. District Judge Ashton held that “It is only the role of the Court of Protection to authorise a statutory will when there has been a material change of circumstances or there is a vacuum. It is not the role of this Court to adjudicate upon disputes as to the validity of wills.” He was asked to reconsider his decision pursuant to rule 89, and directed that the application be referred to a Chancery circuit judge in Manchester. The application was heard by HHJ Hodge QC.
At paragraph 16 of the judgment, Judge Hodge said: “Given the importance attached by the Court to the protected person having done the “right thing” by his will, it is open to the Court, in an appropriate case, to decide that the “right thing” to do, in the protected person’s best interests, is to order the execution of a statutory will, rather than to leave him to be remembered for having bequeathed a contentious probate dispute to his relatives and the beneficiaries named in a disputed will. I therefore hold that the Court of Protection should not refrain, as a matter of principle, from directing the execution of a statutory will in any case where the validity of an earlier will is in dispute. However, the existence and nature of the dispute, and the ability of the Court of Protection to investigate the issues which underlie it, are clearly relevant factors to be taken into account when deciding whether, overall, it is in the protected person’s best interests to order the execution of a statutory will.”
At paragraph 22 he directed that there be an equal split of residue among JAD’s three children, and stated: “In the light of Mr D’s behaviour over the forged Enduring Power of Attorney, it is appropriate that he should be replaced as one of Mrs D’s executors and trustees by her property and affairs deputy, who is a practising solicitor. However, neither such behaviour, nor the nature of his dealings, and those of Mrs S, with their mother’s assets leads me to the view that it would be in the best interests of Mrs D to exclude either Mr D or Mrs S from an equal share of Mrs D’s estate with their half-sister.”
Before: HHJ Hodge QC
Hearing and judgment: 16/8/10
The hearing proceeded in private as a hearing on paper only without any of the parties attending. The Court received written submissions from Mr Nigel Ginniff, instructed by the Lee Rigby Partnership, Leyland, on behalf of the applicant; and a Position Statement from Mr David Rees, instructed by the Official Solicitor, on behalf of Mrs D.
 Ch 57,  1 All ER 859,  All ER (D) 102 (Aug),  WTLR 1511
Re D  EWHC 2150 (Ch)Not on Bailii (cited as this in  Eld LJ 24)
Duplicate Bailii citation number: