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|ET v JP (2018) EWHC 685 (Ch)||
Variation of Trusts Act
"This judgment deals with one point which arose in the course of an application for the court's approval to a variation of a trust pursuant to the Variation of Trusts Act 1958. ... The way in which section 1 of the 1958 Act operates can be summarised as follows: (1) In the case of an adult beneficiary who has capacity within section 2(1) of the 2005 Act, the adult can decide for himself whether to agree to a proposed variation of a trust and the court has no power to give approval on his behalf; (2) In the case of an adult beneficiary who does not have capacity within section 2(1) of the 2005 Act to agree to the variation of a trust, the court has power to give approval on his behalf but the question as to whether the variation is for his benefit is decided by the Court of Protection rather than by the High Court; (3) In the case of a minor beneficiary, the minor does not have capacity (by reason of being a minor) to decide for himself whether to agree a proposed variation of a trust and the court has power to give approval on his behalf. The question then arises: what is the position of a minor beneficiary who, by reason of an impairment of, or a disturbance in the functioning of, the mind or brain would not have capacity for the purposes of section 2(1) of the 2005 Act to make decisions for himself in relation to certain matters? Is such a minor within section 1(3) of the 1958 Act so that the question as to whether a variation of a trust would be for his benefit is to be determined by the Court of Protection rather than by the High Court? If that question had to be referred to the Court of Protection and that court determined that the variation was for the benefit of the minor, the matter would then have to return to the High Court for it to give its approval to the variation under section 1 of the 1958 Act."
|James v James (2018) EWHC 43 (Ch)||
Banks v Goodfellow test for testamentary capacity survives MCA
"There is a preliminary question of law as to the test to be applied for testamentary capacity in a case like this, where the testator has made a will, died, and then the question of capacity has arisen. The traditional test for such a case is that laid down in Banks v Goodfellow (1870) LR 5 QB 549, 565, per Cockburn CJ: 'It is essential … that a testator shall understand the nature of his act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect, and, with a view to the latter object, that no disorder of the mind shall poison his affections, avert his sense of right, or prevent the exercise of his natural faculties, that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if his mind had been sound, would not have been made.' ... More recently the Mental Capacity Act 2005 has made fresh provision for the law of mental capacity in certain situations. What is unfortunately not made express in that legislation is the extent to which this fresh provision affects the test for capacity to make a will when that question is being judged retrospectively (typically, though not necessarily, post mortem). ... The general rule of precedent, as applied in the High Court, is that that court is not strictly bound by decisions of co-ordinate jurisdiction, but will follow them as a matter of comity unless convinced they are wrong ... As it happens, I think the decision in Walker v Badmin  EWHC 71 (Ch)Not on Bailii! [that the test in Banks v Goodfellow not only had survived the enactment of the 2005 Act, but that it, rather than anything in the Act, was still the sole test of capacity for judging will-making capacity in retrospect] is right, and for the reasons given by the deputy judge. ... Whilst it is a complication to have two tests for mental capacity in making wills, one prospective and the other retrospective, it is a complication created by the decision of Parliament to legislate as it has, a decision that the courts must respect."
|Whittaker v Hancock & Ors (2018) EWHC 3478 (Ch)||
LPA attorney as substituted personal representative
"The claimant has brought a claim under section 50 of the Administration of Justice Act 1985 to be appointed as substitute personal representative of the estate of John Parker in place of the second defendant, her mother, and for a caveat entered by the third defendant on 20 July 2016 to be removed. ... The third defendant is the deceased's daughter and opposes the claim. ... In a statement accompanying the Will, signed by the deceased and witnessed by a legal secretary the deceased explains that he has made no provision for the third defendant ... On 20 July 2016 the third defendant caused a caveat to be entered. She subsequently entered an appearance to the claimant's warning asserting that the 2003 Will may be invalid due to the deceased lacking testamentary capacity, being subject to undue influence and want of knowledge and approval. ... Mr Devereux-Cooke submits that I should make an order appointing the claimant as substitute personal representative for the second defendant. The claimant is the attorney for the second defendant, the LPA having been registered on 16 January 2014. The second defendant cannot consent to the claim as she lacks capacity. The first defendant does not oppose the claim. ... It is a general LPA in respect of property and financial affairs that is in wide terms enabling the claimant, as attorney, to make decisions about the second defendant's property and financial affairs. There are no conditions or restrictions specified in the instrument. ... It is also relevant that the second defendant is the sole beneficiary under the 2003 will. She is in a different position to a case where there are a number of beneficiaries. ... I accept Mr Devereux-Cooke's analysis that the claimant has standing to bring this claim under section 50. If I am wrong in my analysis I consider that the position could be remedied by adding the second defendant as a claimant and appointing the current claimant as her litigation friend. I also accept Mr Devereux-Cooke's analysis of rules 31 and 35 of the Non-Contentious Probate Rules 1987 and would have been prepared to treat the claim as including this as an alternative legal route, had it been necessary. ... I consider that in order for the deceased's estate to be administered it is necessary to substitute the claimant as personal representative in place of the second defendant."