Re JC; D v JC [2012] MHLO 35 (COP)
JC's daughter D, who had been adopted out, sought a statutory will giving her an equal share JC's £3.5m estate alongside his other children (A, B and C) who had not been adopted. (1) The criterion now for making statutory wills on behalf of adults who lack testamentary capacity is what is in their best interests rather than substituted judgment; however, best interests contains a strong element of substituted judgment. (2) The value of the 'balance sheet' approach is of doubtful effectiveness in statutory will applications, and in this case it was a struggle to identify benefits or disbenefits, but usually there is at least one factor of 'magnetic importance'. (3) In this case, the idea of being remembered with affection for having done the 'right thing' was of no assistance: 'JC has an appalling track record. He has spent his entire lifetime doing precisely "the wrong thing" in his relationships with others, and his malevolence is such that he would rejoice at being remembered by them with disaffection.' (4) A substituted judgment approach would lead to JC dying intestate, but it was in his best interests to make a will in order to appoint independent professional executors who are familiar with the background and can provide continuity in the administration of his estate before and after his death. (5) JC had poor relationships with all his children, but none at all with D: this factor was of 'magnetic importance' so the statutory will would be in favour of A, B and C only. (6) A, B and C would be allowed to decide the devolution of their shares of the estate if any of them predeceased JC, as it was unlikely that they would want their shares to go to each other. (7) The normal rule on costs (that in property and affairs cases the costs be paid by P) was not departed from.
Other
Hearing: 25/1/12
Judgment: 26/3/12
Before: Senior Judge Lush
Citations
D v JC (by his litigation friend the Official Solicitor), JG (his deputy), A, B and C
Case no 11757467
External link
Not on Bailii at time of writing.