Articles

Private Client: King Lear and the Mental Capacity Act 2005

You may not associate the Court of Protection with high drama, but in a case heard in January 2009 called “In the Matter of P”¹ Mr Justice Lewison made a dramatic change in the law governing the approach of the Court to making Wills for those persons who lack the mental capacity to make their own.

The judgment was of literary bent in that it enabled the Judge to talk about a concept as esoteric as entails and to quote “Pride and Prejudice”. The case also had international ramifications.

The Will concerned is that of a tenant in tail in possession² of an entailed estate in England (“P”). P is domiciled in California and has been deemed to lack the capacity to make a Will himself. In February 2008, P’s niece applied to the courts of California to be appointed as the Conservator of P’s person and property (effectively equivalent to a welfare and property and affairs deputyship in England). The Californian Court instead appointed the Bank of America as Conservator of P’s person and property. As P’s property is located in England, the Bank applied to the Court of Protection to make a Will on P’s behalf, to appoint a deputy and to determine what powers the deputy will have.

This raised questions of jurisdiction as well as the approach to be taken following the introduction of the Mental Capacity Act 2005. In his judgment, Mr Justice Lewison said that the court had the power, under the 2005 Act, to order the execution of a Will dealing with immovable property situated in England and Wales irrespective of a patient’s domicile. He also set out the principles that had guided the Court of Protection prior to the Mental Capacity Act 2005, primarily that the Court should attempt to do what the patient himself would have done. But, the 2005 Act provided (or the Court held it to provide) that the decision as to how the Will be construed must be, that it should be in the patient's best interests objectively. That is quite different from what he might have done left to his own devices.

I mention King Lear because, apart from the fact that he was (in my opinion) an obvious candidate for the Court of Protection, the result, had his Will been made before 2005, would have been radically different from what his Will would be after that date applying "In the Matter of P".

Before 2005 King Lear would have left his fortune (or what remained of it) to his three daughters in equal shares. After 2005 the Court would undoubtedly have given the lion’s share, if not the whole estate, to his good daughter Cordelia - and presumably have left it to Goneril and Regan to make application under the Inheritance (Provision for Family and Dependants) Act 1975 – an application, which in the light of the evidence available, would have been unlikely to succeed. A quite different result.

A copy of the judgment is available at: http://www.bailii.org/ew/cases/EWHC/Ch/2009/163.html