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	England and Wales Court of Protection Decisions
You are here: BAILII >> Databases >> England and Wales Court of Protection Decisions >> NT v FS & Ors [2013] EWCOP 684 (26 March 2013) URL: http://www.bailii.org/ew/cases/EWCOP/2013/684.html Cite as: [2013] EWCOP 684, [2013] EWHC 684 (COP)

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IN THE COURT OF PROTECTION
IN THE MATTER THE MENTAL CAPACITY ACT 2005
AND IN THE MATTER OF FS

		The Court House Oxford Row Leeds LS1 3BG
		26 March 2013

Judge Behrens :

1 Introduction

1. This is an application by NT ("the Deputy") for authority to execute a statutory will on behalf of FS ("F"). There is no dispute that F lacks the capacity to make such a will. There is equally no dispute that it is in his best interests that such a will be made. There are a large number of Respondents to the application each of whom are potential beneficiaries under such a will. There are, however significant disputes between them as to the provisions of such a will.
2. In addition to the statutory will I am asked to authorise the Deputy to make an immediate gift of £50,000 to F's mother, the Ninth Respondent. This part of the application is uncontroversial.

2 Acknowledgment

3. Before considering the issues in detail it is right that I should acknowledge the very considerable assistance I have received from Counsel. The position statements from all Counsel are full, clear, relevant and extremely helpful in pinpointing the real issues between the parties. The cross-examination was (with some judicial encouragement) kept to a minimum and the closing speeches concise and to the point. In those circumstances it was possible to complete the application in the two days allotted. I am extremely grateful for the assistance I received.

3 The law

4. There is very little dispute between the parties as to the relevant law.

3.1 The Will

Statute

5. The relevant provisions are contained in sections 1(5), 4(2), 4(6) and (7), 16 and 18(1)(i) of the Mental Capacity Act 2005. The sections are set out extensively in Re P [2010] Ch 33 and it is not necessary for me to set them out in full.
6. Under section 1(5) any decision made for a person, P, who lacks capacity must be made in his best interests. Section 4 expands on the concept of "best interests" referred to in section 1 (5). It provides (so far as relevant):

(2) The person making the determination must consider all the relevant circumstances and, in particular, take the following steps.

(6) He must consider, so far as is reasonably ascertainable—

(a) the person's past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity),

(b) the beliefs and values that would be likely to influence his decision if he had capacity, and

(c) the other factors that he would be likely to consider if he were able to do so.

(7) He must take into account, if it is practicable and appropriate to consult them, the views of—

(b) anyone engaged in caring for the person or interested in his welfare,

(d) any deputy appointed for the person by the court,

as to what would be in the person's best interests and, in particular, as to the matters mentioned in subsection (6)."

7. Section 16 gives the court the power to appoint a deputy or to make decisions on behalf a person who lacks mental capacity. The powers conferred by section 16 include the execution for P of a will: section 18 (1) (i). The decision to authorise the execution of a will for P is a decision which must be made by the court itself, and cannot be entrusted to a deputy: section 20 (3) (b). The will may make any provision (whether by disposing of property or exercising a power or otherwise) which could be made by a will executed by P if he had capacity to make it: Sched 2 para 2.

Authorities.

8. I was referred to 4 authorities in the course of submissions – the decision of Lewison J (as he then was) in Re P ,the decision of Munby J (as he then was) in Re M [2011] 1 WLR 344, the decision of Morgan J in Re G(TJ) [2011] WTLR 231 and the decision of Senior Judge Lush in Re J(C) [2012] WTLR 121. I do not intend to lengthen this judgment with lengthy quotations from those authorities. The guidance from them may be summarised:

1. The 2005 Act marks a radical change in the treatment of persons lacking capacity. The overarching principle is that any decision made on behalf of P must be in P's best interests. This is not the same as inquiring what P would have decided if he or she had had capacity. It is not a test of substituted judgment but requires the Court to apply an objective test of what would be in P's best interests. [Re P paragraphs 36 – 38]

2. The Court must follow the structured decision making process laid down by the 2005 Act. Thus the Court must consider all relevant circumstances and in particular must consider and take into account the matters set out in sections 4(6) and 4(7) which I have set out above.

3. The Court must then make a value judgment giving effect to the paramount statutory instruction that the decision must be made in P's best interests. [See Re P paragraph 39].

4. As Munby J pointed out [Re M paragraph 32] the 2005 Act contains no hierarchy between the various factors which have to be borne in mind. The weight to be attached to different factors will inevitably differ depending on the individual circumstances of the particular case. There may however in a particular case be one or more features which, in a particular case, are of "magnetic importance" in influencing or even determining the outcome.

5. The authorities contain a discussion of the weight to be attached to P's wishes and feelings. In paragraph 40 of Re P Lewison J cited at length from the decision of Judge Marshall QC in Re S [2009] WTLR 315. In paragraph 55 of her judgment she had said that the views and wishes of P in regard to decisions made on his behalf are to carry great weight. Her reasons, expressed in paragraph 56 were:

56. The Act does not of course say that P's wishes are to be paramount, nor does it lay down any express presumption in favour of implementing them if they can be ascertained. Indeed the paramount objective is that of P's best interests. However, by giving such prominence to the above matters, the Act does in my judgment recognise that having his views and wishes taken into account and respected is a very significant aspect of P's best interests. Due regard should therefore be paid when doing the weighing exercise of determining what is in P's best interests in all the circumstances of the case.

She went on in paragraph 57 to suggest that there was a presumption in favour of implementing those wishes. Lewison J did not wholly agree with this reasoning. In paragraph 41 of Re P he said:

41. I agree with the broad thrust of this, although I think that HH Judge Marshall QC may have slightly overstated the importance to be given to P's wishes. First, section 1 (6) is not a statutory direction that one "must achieve" any desired objective by the least restrictive route. Section 1 (6) only requires that before a decision is made "regard must be had" to that question. It is an important question, to be sure, but it is not determinative. The only imperative is that the decision must be made in P's best interests. Second, although P's wishes must be given weight, if, as I think, Parliament has endorsed the "balance sheet" approach, they are only one part of the balance. I agree that those wishes are to be given great weight, but I would prefer not to speak in terms of presumptions. Third, any attempt to test a decision by reference to what P would hypothetically have done or wanted runs the risk of amounting to a "substituted judgment" rather than a decision of what would be in P's best interests. But despite this risk, the Act itself requires some hypothesising. The decision maker must consider the beliefs and values that would be likely to influence P's decision if he had capacity and also the other factors that P would be likely to consider if he were able to do so. This does not, I think, necessarily require those to be given effect.

In paragraph 34 of Re M Munby J agreed with the broad thrust of Lewison J and Judge Marshall's views. He amplified his views in paragraph 35:

35 I venture, however, to add the following observations:

i) First, P's wishes and feelings will always be a significant factor to which the court must pay close regard: see Re MM; Local Authority X v MM (by the Official Solicitor) and KM[2007] EWHC 2003 (Fam), [2009] 1 FLR 443, at paras [121]-[124].

ii) Secondly, the weight to be attached to P's wishes and feelings will always be case-specific and fact-specific. In some cases, in some situations, they may carry much, even, on occasions, preponderant, weight. In other cases, in other situations, and even where the circumstances may have some superficial similarity, they may carry very little weight. One cannot, as it were, attribute any particular a priori weight or importance to P's wishes and feelings; it all depends, it must depend, upon the individual circumstances of the particular case …

6. Differing views are expressed in the authorities as to relevance to the decision maker of P "having done the right thing" by his will and being remembered for that after his death. Both Lewison J and Munby J took the view that this was a relevant matter to be placed in the balance sheet. However Morgan J and Senior Judge Lush have expressed doubts. [See paragraphs 52 – 53, 64 of Re G(TJ) and paragraph 54 of Re JC.] As Morgan J pointed out the making of the gift and/or the terms of the will are not being made by P but by the Court. Furthermore insofar as there is a dispute between family members the unsuccessful members are not likely to think that he had done the right thing. For my part I think there is force in Morgan J's views on the facts of this case with the result that I do not intend to place any weight on this factor.

3.2 The gift

9. The terms upon which the Deputy was appointed do not permit the Deputy to make gifts of £50,000 without the authority of the court. It is, however, not in dispute that the court has power to authorise the making of gifts under section 18(1)(b) of the 2005 Act.

4 The parties

10. On 21^st June 2011 NT was appointed by DJ Glentworth as F's deputy after a contested hearing. He made the application for the statutory will on 11^th June 2012. He has filed two witness statements in which he has expressed a view as to the terms of such a will. He however remains neutral.
11. His views on the terms of such a will are, in fact more favourable to the Fifth to Eighth Respondents ("the S family") than those expressed by the Official Solicitor.
12. On 7^th March 2013 I acceded to an application (not opposed by the Deputy) that he need not attend the hearing either as a party or a witness. In so doing I accepted an argument that his views were sufficiently expressed in his written statements and that it was not proportionate for him to attend this already expensive litigation. Following the order on 8^th March 2013 the Deputy wrote a further letter in which he explained his reasoning and modified his views as to the terms of the will in the light of the written evidence that he had by then read.
13. F was born on 2^nd November 1938. He is thus 74 years old. He was the eldest of four children. His siblings the Fifth, Sixth and Seventh Respondents ("I, B and Q") were born on 8^th May 1948, 30^th December and 7^th February 1956 respectively. His mother, the Ninth Respondent ("T"), is now 95 and resides in a residential care home in Leeds. The remaining family member, the Eighth Respondent ("L") is F's uncle. L is T's half brother and is 82 years old. According to the Deputy F regarded him as more of an elder brother than an Uncle.
14. F never married. However he has had two long-term relationships. He had a relationship with CE ("C") between 1967 and 1984. KE ("K") was born in 1976. It is now conceded on all sides that K is F's son. As will appear below one of the contentious issues between the S family and the other parties to the dispute is the nature of K's relationship with his father. F's second long term relationship was with the Fourth Respondent ("N").

5 F

15. When F was 20 he became a professional rugby league player with a Leeds club. He earned some £200 per week, a substantial sum in those days. He qualified as an electrician. In evidence K stated that F stopped working as an electrician in the mid to late 1970s. Thereafter he was involved in buying and renovating run-down properties. He is still the owner of three properties ("Property A", "Property B" and "Property C", which form the bulk of his assets.
16. It is not in dispute that he received considerable assistance from L, C, I and Q in the early days in relation to his properties. None of them received any remuneration for the work they did.
17. F was a secretive man and kept his life compartmentalised. Thus he did not tell K or his family about his relationship with N. As a result K did not meet N until about 2006. Before that he had contacted his father by means of leaving telephone messages at Property C, one of the properties F owned. N did not meet F's family until 2005 when she telephoned them. N did not know the extent of F's assets until he was suffering from dementia. She knew he owned Property C, but not the other assets. N did not know how F occupied his days. In so far as there are differences in recollection as to what F may have said, I agree with the views of the Deputy and the Official Solicitor that he may well have said different things to different people.
18. F is suffering from moderate to severe Alzheimer's and dementia. The symptoms became apparent in 2006 or 2007. There is an assessment by a Consultant Old Age Psychiatrist, Sharon Nightingale, dated 11^th October 2011 which makes it plain that he has no recall of his assets, no recall of his immediate and extended family and how his will could affect them. He could not retain information long enough to weigh up decisions. A similar view was expressed by Janet Ilett, Deputy Official Solicitor, who visited him at home in December 2012. It is plain (and not in dispute) that he does not have the capacity to make a will or to make a gift of £50,000 to his mother.

6 F's relationships

6.1 C

19. C met F in 1965. He was 9 or 10 years older than her. They began a relationship in 1966 which lasted for some 18 years. In her witness statement she describes how she got to know F's family. They lived in rented accommodation. C started what turned out to be a successful career in television.
20. C believes that it was in the late 1960's that F bought his first property. She describes how she helped him every weekend cleaning and decorating the property. At this time she got to know other members of F's family who were also helping. She describes how this property was sold to his uncle B and how he thereafter bought the three properties he now owns, one of which was converted into flats. She completed the annual accounts.
21. K was born in 1976. Although he did not take his father's surname and was not mentioned on the birth certificate it is not now in dispute that F is K's father. A DNA test submitted at the previous hearing puts the probability at well over 99%.
22. It is not necessary to describe the deterioration of the relationship between C and F. It ended in 1984 or 1985. At that time F owed C £5,000 which was never repaid.
23. In her witness statement C describes the relationship between K and his father:

1. whilst at school K and his father would spend time together two or three times a week. They also spent a lot of time together in the school holidays.

2. when K and his wife moved to Ledston, F was a regular visitor

3. After K met N in 2006 he was a regular visitor.

24. In cross-examination C repeated much of this evidence and expressly rejected the suggestion that there was no close relationship between F and K.
25. As already noted the relationship broke down in 1983 or 1984. It is not necessary to set out the circumstances of the breakdown.

6.2 N

26. N was born on 3^rd December 1940 and is thus 72. She is a divorcée. She met F in 1983 and started to cohabit in 1989. They have thus lived together for 24 years. N ran a hairdressing salon in Leeds and continued to run this as a mobile hairdressing business until 2010.
27. F and N live together at G Road, Leeds, a property bought by N with the assistance of a mortgage but which she has transferred into the joint names of herself and her three children. According to N F did not contribute substantially to the household expenses. She paid the mortgage and the majority of the household expenses. She describes the relationship as founded on love. N was unaware of the extent of F's assets until about 2006.
28. Inevitably the relationship between F and N changed after he was diagnosed with dementia. N took on the increasingly demanding role of carer. The most recent care report, dated December 2012, acknowledges N's commitment to F's care and describes his quality of life as "good". It recommends that he should continue to live in his familiar home environment with his partner of choice for as long as possible.
29. Since her retirement N has taken F on a Caribbean cruise which he enjoyed. She showed me photographs of him and her together during the cruise.

6.3 K

30. K describes his relationship with his father and his father's family in some detail in his witness statement. In paragraphs 3 to 7 he confirms much of his mother's evidence in relation to his schooldays. He describes the sort of activities he spent with his father including fishing trips and helping him cut the lawns; he received Christmas and birthday presents from his father.
31. He says that he regarded his father's family as an extended family. He was particularly close to his grandmother (T), his great uncle (L) and his wife.
32. When he went to University in Durham he saw less of his father but maintained telephone contact about two or three times a year.
33. When he left University he came back to Leeds. Regular contact was then resumed. This would often involve meeting at K's home, having a few beers or going to an auction.
34. After K married, F became close to K's wife. He helped find the house they bought and later with the renovations to that house. He was a regular visitor to their house until 2006.
35. K did not assist F with his properties until about 2006. At that time F was in a dispute with Bradford Council and had become very anxious. It is not in dispute that he has assisted with F's affairs thereafter. Amongst other matters he put together a scheme for Property A, which in the end F did not adopt, he organised the demolition of Property B, he assisted in a dispute with a neighbour. It is equally not in dispute that K has provided considerable assistance to the Deputy. In his letter of 8^th March 2013 the Deputy specifically makes the point that K has given him considerable assistance with all three properties and has worked "tirelessly" in seeking to clear Property C of its contents.
36. There is a dispute between the parties as to the nature of the relationship between K and F. In his witness statements I says that F maintained that K was not his son. He also says (in his second statement) that K's statement is delusional and that he does not believe that either K or N had the relationship with F that they wanted. In cross-examination he accepted that the relationship was quite normal up to 1984 and that he did not see K at all between 1984 and 1997. In paragraph 13 of his most recent statement L says that the relationship was not what he would describe as a "father son relationship". In his view such a relationship exists where your father cares for you, looks after you and when you are hurt your father hurts more than you do. In an earlier statement, which having heard Mr Lowe, I am quite satisfied L understood and approved, L said:

1. that F and K always shared a good relationship,

2. that K has always been a significant part of F's life, (paragraph 5)

3. that K did not have a distant relationship with F, that he had witnessed F share family time with K countless times since the separation of F and C.

37. Having seen and heard K, I, L and C give evidence I have no hesitation in holding that the relationship between K and F was a perfectly normal father son relationship. I accept the evidence of K supported as it is by L's earlier witness statement and that of C. I reject the evidence of I and L's more recent witness statement. Although the matter was not the subject of detailed cross-examination I also reject those passages in Q and B's witness statements which suggest that K's relationship with his father was other than normal.

6.4 T

38. As already noted T is 95 and is currently a resident in S Nursing Home . She, too, lacks capacity and her interests are represented by Steven Appleton who has provided two witness statements.
39. It is quite clear that there is and always has been a close relationship between F and his mother. This is confirmed by all the witnesses. Furthermore T was the residuary beneficiary under the invalid will signed by F in 1986. F visited his mother regularly and is still taken to see her by N approximately once a week. F has supported his mother financially in the past. This is best evidenced by a joint account in the names of F and his mother into which a sum of £80,000 was paid. It may well be that a small part of that £80,000 was provided from T's assets but I find as a fact that the vast majority has been provided by F and has been used to discharge her care home fees.
40. It is accepted on all sides that F would have wanted to provide for his mother's needs financially.

6.5 I

41. I is F's brother. He is 10 years younger than F. I is a gas fitter by trade and had a full time job with the Gas Board. However he had a close relationship with his brother and it is not in dispute that he helped F with his properties at weekends on a regular basis. In evidence he mentioned in particular assistance at Property A and Property C in the 1970s. I received no payment for this assistance.
42. Both K and N gave evidence that there was a fall out between F and I. The precise nature of the fall out was not described in detail. However they said that F accused I of being a thief and that he would never speak to him again. When I gave evidence he accepted in cross-examination that there had been a fall out. He said that it related to money owed by F to Bradford Council and that he became very agitated. As he had upset I's wife I asked him to leave. At no time did F accuse I of stealing his money. In his second witness statement it was I's opinion that the accusation related to a bridging loan made to him by F and all of which had been repaid.
43. Perhaps it does not matter why F fell out with I. It may also be that F never accused I of dishonesty to his face. I do, however accept the evidence of K and N that F described I as a thief to them.
44. There is, however, no doubt since 2006 I has provided considerable assistance in relation to F's affairs. He and Be assisted by getting Property B delisted which enabled it to be demolished. Furthermore in his letter of 8^th March 2013 the Deputy acknowledges the great deal of assistance given to him by I who also assisted in clearing Property C of its voluminous contents.

6.6 L

45. L is F's half uncle and is now 84.82 Their relationship was more one of siblings than of uncle and nephew. It is common ground that F and L were very close and that L has provided considerable assistance to F in relation to his properties.
46. As already noted there was a close relationship between C, K, L and his wife.

6.7 Q and B

47. B has been away from Leeds for many years. She comes back about 4 times a year but maintains regular contact by phone. She accepted that she had not helped with F's affairs before his dementia but she did assist I in obtaining the delisting of Property B.
48. Her witness statements deal with the relationship between K, N and F. She was not cross-examined in detail on those parts of her statement. In any event for reasons I have given I prefer the accounts given by K, N and the first witness statement of L.
49. Q's evidence mirrored much of the evidence of B. For reasons I have given I do not accept her opinion of the nature of the relationships. In paragraph 12 of her second witness statement Q says that she helped with the administration of F's properties. She dealt with correspondence writing to tenants regarding rent and contractual matters; she dealt with neighbours over boundaries and other matters. She was not paid.

7 Financial Matters

7.1 F's capital assets

50. F's estate may be worth up to £3.1 million, although the greater part of this is tied up in properties in Ilkley and Leeds. An up to date schedule of assets was attached to the Deputy's 2^nd witness statement dated 15^th February 2013.

Property B, Ilkley	£2,150,000
Property A, Leeds	£500,000
Property C, Leeds	£280,000
Reassure Life Assurance Policy	£74,981.83
Funds at Court Funds Office	£40,000
Cash in Deputyship Account	£15,756.96
Stocks and shares	£39,528.21
Total	£3,100,267

51. A number of points can and should be made about these figures:

1. The figure for Property B has to be treated with caution. It is based on a subject to contract and subject to planning permission offer which may not materialise. In the schedule to his first statement the value was £1,500,000.

2. Capital Gains Tax will be payable on any asset realised in F's lifetime. It is inevitable that some of the assets will be realised. None of the properties are at the moment income producing. Furthermore funds will have to be raised to meet the costs of these proceedings (estimated at £200,000), F's income shortfall, and T's needs. CGT is payable at the rate of between 18 and 28% of the gain.

3. Inheritance Tax will be payable on F's death. Subject to his Nil Rate Band it is currently levied at the rate of 40%

7.2 F's income shortfall

52. The Deputy has also provided a Schedule of income and expenditure which indicates that there is currently an annual deficit of nearly £24,000.

53. At one time it appeared to be suggested that some of this expenditure was unreasonable. However this argument was not pursued in closing submissions and I do not need to refer to it further. Plainly if some of the properties are sold the expenditure on the properties will reduce with a reduction to the shortfall.
54. In her helpful position statement Miss Rich points out that F's actuarial life expectancy is between 12.5 and 13.9 years. She has carried out a Duxbury calculation which shows that the capital sum necessary to meet a £25,000 income shortfall for a man aged 74 is £196,000.

7.3 N's financial position

55. N sets out her financial position in paragraph 7 of her first witness statement and amplifies it in her second statement.

Capital

56. Although G Road, Leeds was acquired by N and was vested in her name, in 2009 she transferred it into the joint names of herself and her three children. She therefore owns only 25% of the equity in it. It is worth about £160,000. Although the matter was not investigated in detail it is quite likely that she would in addition have some equitable interest in the property which would permit her to occupy it for the rest of her life. There is certainly no suggestion that any of her children are seeking to realise their share of the equity.
57. When she gave evidence N told me that it was too big and that she was looking to acquire a bungalow. She thought that the cost of a suitable bungalow would be in the same region.
58. She has £12,500 in a NatWest savings account and a term deposit account in the joint names of F and herself totalling £21,913.

Income and Expenditure

59. In her first witness statement she stated that her income is £5,000 p.a. In addition she is receiving £13,000 from the Deputy (which will cease if F dies). She estimated she would need £18,000 p.a to cover her annual expenditure and maintain her standard of living.
60. In her second witness statement she updated the position. Her total income (including the sum received from the Deputy) is £19,162. She has exhibited two schedules showing expenditure of £31,283 p.a before F's death and £34,283 p.a after his death. No doubt some of the items on the two lists could be pared down but they give a general idea of the sort of expenditure involved. Included in the list is work on the house which would not be needed if she moved. It is also pointed out that she needs a new car

7.4 T's financial position

61. T's litigation friend has helpfully summarised her financial position in his witness statement.

Capital

62. T's capital is valued at £91,346 of which £57,000 represents the value of the empty property where T used to live. That property has been on the market since May 2012. The agents have estimated a realistic price to be £60,000 - £65,000 but interest in the property has been poor. The agents have also recommended a scheme of improvements to facilitate sale which could cost around £5,000.

Income

63. T's current income is £11,551 p.a. Her main expense is the cost of the care home (currently £26,462 p.a) but there are other expenses estimated at £6,105. Approximately £650 of these expenses are related to her property.
64. There is no evidence that the current care home cannot cope with T but if she had to move other care homes are more expensive.
65. T's litigation friend has included some other "one off expenditure". This includes some £6,500 to be spent on the property, £1,500 for new dentures, and possible private medical treatment. There is to no evidence that any private medical treatment is needed.

8 The 1986 "will"

66. Searches and inquiries have been made to establish whether F has previously made a will. No executed will has been traced.
67. In 2011 I found a manuscript document in a Bible belonging to T. Everyone agrees that it is in F's handwriting. It comprises two sides of one sheet of paper.
68. It is headed "Will of F … of …. It contains a revocation clause. At the end of the document it makes provision for the date to be inserted but the date is left blank. It is signed by F. It contains an attestation clause in standard form but there are no attesting witnesses.
69. It purports to appoint T and I as executors but the words "as executors" are omitted. The dispositive provisions may be summarised:

1. Pecuniary legacies are given of

1) £20,000 each to I and Q

2) £10,000 each to K and B

3) £5,000 each to L and C

4) £2,000 to N.

70. The residue is given to T
71. The parties are agreed from the addresses given in the document that it probably came into existence between 1984 and 1986.
72. There was evidence from a number of the beneficiaries that F told them that he had made a will and that they were included as a beneficiary. None of them knew the extent to which they would inherit.
73. No-one has contended that the document created a valid will but the parties have expressed differing views as to its importance.
74. Attempts have been made to analyse the legacies contained in the document so as to determine what proportion of the estate was to be left to members of the S family. For my part I did not find the attempt helpful because of the different estimates that were made of the value of F's properties in 1984 or 1986. K's attempt at valuation puts the 1986 value at £200,000, whereas the attempt of T's litigation friend puts the value at £400,000.
75. Mr Roberts submitted that this document was a feature of "magnetic importance" in determining the terms of the statutory will. He submitted that it is a document expressing F's wishes within section 4(6) of the 2005 Act; he drew attention to the fact that under that document K received as much as B but only half as much as I and Q. He submitted that this was the starting point for the terms of the statutory will as it represented F's wishes.
76. Miss Griffin's submissions were to much the same effect. She also submitted that the document was relevant under section 4(6). Ignoring the effect of Inheritance Tax and taking a value of the estate in 1986 as £400,000 she submitted that F had left 82% of his estate to T. Plainly IHT should not be ignored but there is force in her submission that it showed that T was important to F and that he wished to make substantial provision for her.
77. Mr Rees, Miss McQuail and Miss Rich advised a significantly more cautious approach to the document than that advocated by Mr Roberts and Miss Griffin. First there is the fact that the document contained an attestation clause in clear terms yet it was not witnessed. They ask why F did not get it witnessed if he intended it to be a valid will. Second there was some inconclusive hearsay evidence as to the existence of another will (possibly drawn up by a solicitor) which was torn up by T as she did not approve of its contents. In particular it left out Great Aunt W. Third the document was made in 1986. As Miss Rich pointed out there have been very significant changes in the 26 years since 1986. K has grown from a schoolboy of 10 to a married man with two young children of his own with a continuing relationship with F. In 1986 the relationship between F and N was in its infancy. It has blossomed and N is now acting as F's carer. The relationship between F and his siblings has or may have changed over the 26 years. One example of this is the fall out between F and I and F's statement that he would never talk to I again. T is, of course, 95 incapable of managing her affairs and living in a care home.
78. In the light of the evidence from the beneficiaries that F told them that they were included in his will I think it more probable than not that F thought he had made a valid will. In the absence of any other document I think it probable that he thought that the 1986 document was that valid will. I attach little weight to the hearsay evidence about T destroying another will. In those circumstances I accept that it is a document within section 4(6) which I must consider and have regard. I think it is of assistance in that it shows that as at 1986 F wished his siblings and especially his mother to be included as objects of his bounty. However, for the reasons set out by Mr Rees, Miss McQuail and Miss Rich I do not regard it as a "magnetic feature" of the case. Nor do I regard it as the starting point for the determination of F's best interests in relation to the terms of the statutory will. As Munby J pointed out in Re M whilst P's wishes will always be a significant factor the weight to be attached to P's wishes and feelings will always be case-specific and fact-specific.

9 The views of the parties

79. The views of the parties are summarised in the following table which has been adapted from the tables helpfully provided by Miss Rich.

80. A number of points must be made about this table:
81. As noted above the views of the Deputy have changed since his witness statement. In the letter dated 8^th March 2013 he expresses his revised views in this way:

I am now of the view that [my] proposal … for 15% of the net estate to pass to N is too low. At the time of the application I did not have much information about N's financial situation and there were some doubts as to the length of her relationship with F. Having now considered all the evidence I accept that she has a very long standing relationship with F. Further if I may say so I agree with the Official Solicitor that her claim should not be considered solely in the context of the Inheritance (Family and Dependants) Act 1975. N has shown and continues to show great devotion to F.

Although the Official Solicitor and K accept my proposal that 50% of the net estate should pass to K I wish to stress that any increase in the 15% I initially proposed should pass to N should not be entirely at the expense of the shares passing to the S family. I thus accept that my initial proposal that a total of 30% of the net estate passing to I, B, Q and L is too high, but at the same time consider that 15% is too low given the important contribution these family members have made throughout F's life.

82. As can be seen N, K (and C) have modified their views in the light of the suggestions made by the Official Solicitor. In effect they have agreed with his suggestions. C and K have agreed that any award for C will come out of K's share and that I do not have to make any specific award to her.
83. The figures for the S family are taken from Mr Roberts' position statement. They do not (quite) add up to 100% but the broad effect of his submissions can be seen from the table.

10 Discussion and Conclusion

84. As set out above the court has to make a value judgment giving effect to the paramount instruction that the decision must be made in F's best interests. It must consider all relevant matters including the matters in sections 4(6) and (7).

The size of the estate.

85. There are so many imponderables that it is impossible to predict with any accuracy the size of F's estate when the will takes effect. It will depend on the extent to which properties are sold and thus incur a liability to CGT, the IHT regime as at the date of F's death, the date of the death, and the extent to which the assets have been spent prior to death.
86. Miss Rich has estimated that the distributable estate will be of the order of £1.7 million; Miss Griffin and Mr Rees urged rather more caution and suggested a figure nearer £1.5 million. It seems to me that these later estimates are likely to be in the right area and I shall proceed on that basis.
87. If it turns out that the estimates are inaccurate and the distributable estate is likely to be significantly less it would, of course be possible for a further will to be made.

N

88. It is plain that N has a potential claim under the Inheritance (Provision for Family and Dependants) Act 1975 against the estate. Such a claim would however be limited to her reasonable maintenance. I agree with Mr Rees that it is not profitable to speculate on the extent of such a claim. There are too many imponderables for it to be a useful exercise. I also agree with both the Deputy and the Official Solicitor that her claim within these proceedings should not be considered solely in the context of such an application.
89. F has a large moral obligation to N. The relationship has lasted for over 28 years; F made minimal contribution to the household whilst N was working; N has acted as his main carer with great devotion since his condition was diagnosed in 2006.
90. The amount of the legacy in favour of N in the 1986 document is of no assistance in determining the extent of any provision in the statutory will.
91. There is a large measure of agreement in the position statements as to the appropriate provision for N. The Deputy has revised his view in the light of the evidence but does not specifically state the level of the appropriate provision. T suggests provision of 20% but in my judgment this is too low and does not reflect F's best interests.
92. I would accept the views of the Official Solicitor, N and K and award N 35% of the estate. The will should provide for substitution in the event of N not surviving F. The terms of the substitution clause are a matter for N and her advisors.

K, the S family

93. The remaining 65% of the estate falls to be divided between K and the S family. As can be seen from the table there is a wide divergence of views as to where the split should take place with the Official Solicitor, K and N at 50%:15%, the S family at 32½%:32½% . T equates K with the three siblings and thus K only receives 16%. The Deputy disagrees with the Official Solicitor and takes the view that 15% is significantly too low for the S family.
94. I attach no weight to the relative awards in the 1986 document. Matters have moved on very significantly since 1986. I agree that K has strong moral claims on F's bounty. K is F's only child. He has a young family of his own. There has been a normal relationship between father and son. However I also agree that members of the S family have made a very significant contribution to F's wealth. I, L and Q all contributed to it without payment before F's dementia. I and B have contributed since. If it were not for these contributions I suspect that the value of F's estate would be significantly less than it is.
95. I attach weight to the 1986 document as showing that F wished to recognise that contribution by making provision for his family out of his estate.
96. I agree with the Deputy that provision for the S family of 15% is too low. On the other hand I think that Mr Roberts's suggestion that the provision should be as much as 33% is too high. My mind has wavered as to the appropriate percentage. In the end I have decided to award the S family 22% of the estate. This provision is subject to the provisions to be made for T set out below.
97. I would make equal provision of 6¼% each for I, Q, and B. The remaining 3¼% would be for L.
98. The will should provide for substitution in terms sought by L, I, Q, and B or their advisors.
99. Accordingly I would award the remaining 43% to K with a substitution clause in such terms as he or his advisors require.

T

100. I accept the suggestion that the Deputy should pay T £50,000 by way of gift. I am satisfied that there was a strong relationship between F and his mother. I am also satisfied both from the terms of the 1986 document and the financial assistance that F had already provided that he wished to contribute to her care. The relationship is continuing and I note that N takes F to see his mother every week.
101. I will direct that the payment be made within 3 months. The effect of such a payment will be to increase the theoretical value of her estate to £140,000. However I accept that because of the difficulties in selling the property, the possibility of a charge to CGT, and other expenses it may be appropriate to take a more cautious approach and to reduce the value of the estate by £30,000. There is currently an income shortfall of £21,000 p.a. On any view a payment of £50,000 should be sufficient to maintain T for another 4 years. If she and F survive 4 years it will be possible to apply to the deputy for a further payment.
102. From an actuarial point of view it is unlikely that T will outlive F. However I agree with Miss Griffin that it is possible that she will and that provision ought to be made for her in that eventuality.
103. In the course of her submissions Miss Griffin demonstrated that the income from the S family's share was highly unlikely to provide sufficient to pay for T's income shortfall. In those circumstances I propose to award T an annuity of £20,000 per annum out of the S family's share. However that annuity will not commence for 4 years (i.e. March 2017) in the event that F dies before that date. If F dies after March 2017 the annuity will take effect on his death. There will, of course, be no substitution provisions in relation to this gift. It will lapse on T's death.
104. I hope that deals with all the matters. If not, any outstanding matters can be dealt when judgment is handed down