ADS v DSM [2017] EWCOP 8 (24 May 2017)

ADS v DSM [2017] EWCOP 8 (24 May 2017)

The appeal is allowed because the COP judge erred in principle and/or failed to take relevant features into account, particularly by not properly investigating or weighing the impact of the Chancery Settlement Agreement, failing to distinguish between allegations and established facts, and not adequately addressing the risk of undue influence or the circumstances in which JKS's wishes and feelings were expressed. The statutory will decision must be reconsidered in accordance with the correct legal approach under the Mental Capacity Act 2005.

Citation
[2017] EWCOP 8
Parties
Appellant: ADS; First Respondent: DSM; Second Respondent: JKS (by her litigation friend the Official Solicitor); Third Respondent: MH (Property and Affairs Deputy)
Jurisdiction
England and Wales
Judgment Date
24 May 2017
Procedural Posture
Court of Protection Appeal / Appeal From Tier 2 Court of Protection Judge
Outcome
Appeal allowed
Legal Topics
Statutory Wills, Best Interests Test, Capacity Assessment, Family Disputes, Settlement Agreements
Mental Capacity Wills and Probate Equity Statutory Wills Best Interests Test Capacity Assessment Family Disputes Settlement Agreements

Case Brief

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Parties

ADS

Appellant

DSM

First Respondent

JKS (by her litigation friend the Official Solicitor)

Second Respondent

MH (Property and Affairs Deputy)

Third Respondent

Procedural Posture

Court of Protection Appeal / Appeal From Tier 2 Court of Protection Judge

Legal Issues

  1. 1 Whether the Court of Protection judge erred in principle or failed to take relevant features into account in authorising a statutory will for JKS
  2. 2 Proper approach to the weight to be given to JKS's wishes and feelings, both before and after loss of capacity
  3. 3 Effect of the Chancery Settlement Agreement on the statutory will application

Ratio Decidendi

The appeal is allowed because the COP judge erred in principle and/or failed to take relevant features into account, particularly by not properly investigating or weighing the impact of the Chancery Settlement Agreement, failing to distinguish between allegations and established facts, and not adequately addressing the risk of undue influence or the circumstances in which JKS's wishes and feelings were expressed. The statutory will decision must be reconsidered in accordance with the correct legal approach under the Mental Capacity Act 2005.

Court Disposition

Appeal allowed

Orders

  • The order authorising the statutory will is set aside.
  • The application for a statutory will is remitted for reconsideration in accordance with the correct legal principles.