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You are here: BAILII >> Databases >> Jersey Unreported Judgments >> In the matter of N (Capacity) 03-Sep-2019 [2019] JRC 170 (03 September 2019) URL: http://www.bailii.org/je/cases/UR/2019/2019_170.html Cite as: [2019] JRC 170 |
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Capacity - application to execute a codicil to the will of moveable estate
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Before : |
Sir William Bailhache, Bailiff, sitting alone. |
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Between |
Advocate Zoe Blomfeld as Delegate of N |
Applicant |
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And |
H M Solicitor General |
Respondent |
Advocate G. D. Emmanuel for the Applicant.
M. Temple Esq., Solicitor General, appeared in person.
judgment
the bailiff:
1. This was an application under Part 4 of the Capacity and Self-Determination (Jersey) Law 2016 (the "Law"), the Applicant being the delegate of N. In her Representation dated 23rd May 2019, the Applicant sought an order from the Court that she execute on behalf of N a codicil to her will of moveable estate, executed on 17th February, 2011 ("the 2011 Will"), in order that she might bequeath the tiers disponible (the disposable third) of N's estate to a S. The circumstances were said to be these.
2. N was born in 1929 and is aged 89. She lives at her home in St Saviour, on her own, with carers visiting her on a daily basis. She suffers from memory loss as a result of vascular dementia. Other than her short-term memory loss, she is in good health and said to be an intelligent and articulate woman. N is a widow. She has two adult children, both of whom live abroad and have done so for some time.
3. N has a friend, S, who has been friendly with N and her husband for over 40 years. As her health has deteriorated, S has assisted with N's care and he carries out many daily tasks for her and he takes her shopping every week and plans her meals for her. It is said she now wishes to change her will so as to leave him a greater share of her estate. She has already provided a pecuniary legacy for him under the 2011 Will in the sum of £35,000 and she now wishes to increase that to one third of the residue of her moveable estate. On current figures that will provide each of her two sons and S with approximately £200,000.
4. When the Representation was first presented, consideration was given to the identity of those who should be convened to it. Given that the outcome, if that order were made, would have a significant financial impact on both her sons and S, it would be appropriate to convene them to the hearing. However, to do so might well affect not only N's relationships with her sons but also her relationship with S. It would also require the Court to consider whether N has sufficient capacity to make the decision in the first place, and if not, whether the Court should make an order on her behalf in her best interests. A hearing as to her existing capacity might cause N distress. Accordingly it is clear that the making of this application, if it were to be adjudicated upon, might have some adverse consequences for N, and therefore it raised questions as to whether or not it was in her best interests to go forward with the Representation.
5. This question needed to be considered against the background that, prior to the adoption of the Law, the customary law of the island was that a person under interdiction was able to make a will in a lucid interval. Whether or not the will was made during the lucid interval would be a matter of evidence. The question which is prompted by Part 4 of the Law is whether that customary law rule continues. When the Representation was first presented, it was therefore resolved to convene Her Majesty's Solicitor General in order that a declaration might be sought as to whether the customary law continued to have effect, namely whether a person who had had a delegate appointed for her under the Law could still execute a will in a lucid interval. The Applicant informed us that upon that basis, she would take instructions from N and if it appeared that N was having a lucid interval she would execute the codicil and any argument between her sons and S, if there were to be any, could take place after her death. If there were no such argument, the estate would be distributed in accordance with her testamentary wishes, as expressed by her Will and Codicil. If on the other hand the customary rule no longer had effect, the Applicant would proceed with the application and convene the relevant parties.
6. Accordingly I sat alone to determine the narrow issue, as a matter of law, of whether a person subject to a delegation can make a will during a lucid period (with or without the Court's approval).
7. On the facts of this particular case, the Applicant was previously a curator of N. Accordingly there is a subsidiary question as to whether a person under delegation who has previously been subject to a curatorship is in any different position.
8. I start with the position under the customary law. Paul Matthews and Stephanie Nicolle in their publication "The Jersey Law of Property" 1991 say this at page 97:-
9. I take the Le Gros passage first which is in these terms:-
10. It is not obvious to me that Le Gros leaves the position open to question. My reading of that passage is that he makes a bold statement as to what the law is. It is true that he does not refer to any authorities. Perhaps he regarded the position as so clear it needed no justification.
11. The relevant extract from Houard is as follows:-
12. It is clear that Houard proceeded on the basis that unless the will in question was an act passed before a notary, there was at least a running assumption that it could be annulled on the basis of imbecility. The real question was whether the testator was same at the date this will was executed.
13. The extract from Basnage to which the authors refer is in these terms:-
14. There is a further extract from the same edition of Basnage dealing with Article CCCCXIII at page 207, where this is said:-
15. These extracts clearly support the view that a person lacking capacity on a permanent basis may have a lucid interval during which a will can validly be made.
16. It may be of interest to note a later edition (the third edition) of Basnage, which is the edition published by the Jersey Legal Information Board. That contains the following additional passage:-
17. In this section, Basnage is distinguishing different types of incapacity, but it does not seem to me that he resiles from the general principle which has been mentioned, not least because this passage follows directly upon the passage cited at paragraph 13 above.
18. Gavey v Mourant (supra) was a case in which the Inferior Number of the Royal Court had ruled that a will made by a person suffering hallucinations should not be admitted to probate. There was an appeal to the Superior Number, which held that the will had been made during a lucid interval and the will was accordingly upheld. That is clear local authority for the principle in question albeit the format of judgments delivered by the Royal Court in those days does not set out any detailed rationale other than that which I have given.
19. This point was also raised in Davies v Sterling [1982 J.J. 125] where the Royal Court was considering a claim by Mr Davies as sole heir of his mother that a will of realty which she made in September 1980 was invalid because she was incapable of making it by reason of her mental incapacity. The plaintiff's case was that until 1980 she might have been capable of making valid wills, except for a period in 1974 when she suffered a severe mental breakdown. She was said to be a manic depressive psychotic which affected her judgment so that while her memory and intellectual faculties functioned properly and she was aware of what she was doing, her decisions were irrational. Crill D B said this at page 127:-
20. I note that the court referred to the extract from Basnage which I have set out at paragraph 14 and also to the cases of Gavey v Mourant and In Re Kennelworth (Baron) 1972 1 PD 335 Unreported.
21. I mention in passing, although it does not affect the present judgment in any way, that the court in Davies v Sterling seems to have had regard to the capacity of the testatrix at the time she gave instructions to her lawyer to prepare the will. To the extent that this was the basis of the decision, with the greatest respect to that court, I would have difficulty in supporting it, because the relevant time for deciding the question of capacity is in my view the date of the will and not the date of the instructions.
22. I add that in my experience it was received wisdom in the profession that a testator who occasionally lacked capacity could make a valid will in a period of lucidity. The extracts which I have set out above would seem to justify that assumption, and I am satisfied that the customary law of the island was that a person who had periods of incapacity could nonetheless validly make a will during a lucid interval.
23. I add that Davies v Sterling was a different type of case from the present one, as there is no suggestion that the testatrix in that case was under a curatorship. The existence of a curatorship might at that date have had an impact on the starting assumption that a person has capacity until it is proved otherwise - see paragraph 19 above.
24. In the circumstances, I conclude that it was the law of Jersey until the passage of the Law that a person whose capacity was in doubt, whether subject to a curatorship or not, could make a will in a lucid interval.
25. I now turn to the relevant provisions in the Law and in doing so emphasise that the issue which is before me is one of law, and not whether N herself does or did have capacity at any particular time. The question I have to consider is whether there is anything in the Law which affects the principle at customary law that a person who sometimes lacks capacity can nonetheless make a will in a lucid interval.
26. The relevant provisions of the Law are these:-
27. The first question arising from this legislation relates to Article 72. This is in my judgment unhappily drafted. As I understand it, there was customary law in relation to curatelles, but this was replaced by statutory legislation with a Law of 1862, subsequently the Law of 1907 to which Le Gros refers and thereafter the Mental Health (Jersey) Law 1969 ("the 1969 Law"). I note that by Article 97(1) of the Mental Health (Jersey) Law 2016, the 1969 Law was repealed - Article 43, which deals with the appointment of curators, was preserved until such time as Part 2 and Schedule 2 of the 2016 Law came into force. By Regulation 22 of the Capacity and Self-Determination (Supervision of Delegates etc) (Jersey) Regulations 2018, curators appointed under Article 43 of the 1969 Law are treated as delegates under the Law subject to the provisions set out in that regulation.
28. Given that the statutory provisions in relation to curatorships have now been repealed, subject to whatever is preserved under the transitional arrangements just described, it is clear that Article 72 of the Law is not intended to refer to those provisions. What therefore does it mean? In particular, does this repeal the customary provision that a person lacking capacity was able to make a will in a lucid interval? It appears to me that the answer to this question is influenced by considering whether it was possible to have a person suffering incapacity and not subject to a curatelle. In my judgment that clearly was the position, because not all persons lacking capacity had a curator appointed for them. It would be most illogical to repeal the customary law provision that a person subject to a curatorship could make a will in a lucid interval but leave continuing a provision that a person lacking capacity but not subject to a curatorship could continue to make a will in a lucid interval. There would be no rational purpose in such a provision. In those circumstances, I conclude that Article 72 was not intended to cover the customary law rule, which is wider than just curatelle, enabling a person lacking capacity to make a will in a lucid interval. I have had regard to the report accompanying the proposition for the new Law and in particular to paragraph 75 of the report, but I cannot find anything in that paragraph which would support a contrary view.
29. Furthermore, it is necessary that any provision in new legislation which is intended to abrogate a customary law rule should do so in clear terms. I have described the drafting of Article 72 of the Law as unhappy because there have been curatorships under a statutory regime since at least 1862 and it is clearly unnecessary to repeal statutory provisions which have already been repealed. Clearly Article 72 must mean something else. On the other hand, the former curatelle regime at customary law was itself replaced by the statutory regime. It is therefore strange to see a provision repealing customary law provisions which have been superseded by statute, but I have assumed this to have been done out of an abundance of caution. The proper construction of this provision in my judgment is that it enjoins the court to deal with applications involving those lacking capacity by adopting the principles in Articles 3 to 6 of the Law.
30. Given that there is no express repeal of the rule regarding the making of a will during a lucid interval, I have considered whether there is any implied repeal given the provisions in particular of Article 28(3) and Article 30 of the Law. I do not consider that there is any implied repeal there. The general principles which are set out at Articles 3 - 5 make it plain that there is an assumption of capacity unless the contrary is established, and that is entirely consistent with the customary law. Article 28(3) and Article 30 must in my judgment be construed against the background of Articles 3 - 5. In practice, all Article 28(3) does is to distinguish the powers of the delegate from the powers of the court. Article 30 does not affect the general principle that the court must first identify whether the person in question lacks capacity. Another way of putting that is that the court must identify whether the person in respect of whom a delegate has been appointed was able to make the will validly during a lucid interval.
31. In his closing submission, Advocate Emmanuel accepted that I could not make any declaration as to N's capacity in this case, both because I was not sitting with Jurats and because there had no direct evidence of her capacity at the date of making the codicil. I was informed that since the first hearing N has in fact made a codicil, and her signature has been witnessed appropriately, including by her doctor. Both the delegate and the doctor, I am told, considered that she had capacity on that day. I record those facts as recited to me without comment and make no finding upon them. Whether they are justified or not might have to be established by proceedings at some future date, taken between those who have an interest in the outcome. In the light of these facts, Advocate Emmanuel withdrew the request for a declaration of capacity.
32. In the circumstances, all that was left was for me to make a declaration as to whether the former rule that a person under interdiction could make a will during a lucid interval still applies. In my judgment the former rule is subsumed within Articles 3 - 5 of the Law. For practical purposes, the former rule therefore continues, but the test to be applied is that set out in the Law in the Articles I have mentioned.