G v Official Solicitor

In deciding whether to authorise a statutory will, the court must consider the particular patient and do what the patient would fairly do for herself, if capable and properly advised. Relevant considerations include changes since any existing will, family conflict, practical difficulties of administration, the advantages of an independent professional executor and continuity between the receivership and executorship. Reasonable professional costs may be taken into account where the size and nature of the estate make professional involvement necessary. An appellate court should not interfere unless there has been an error of legal principle or the exercise of discretion is plainly wrong.

MB lacked testamentary capacity because of senile dementia and Alzheimer’s disease. Her original will appointed her son G as sole executor and divided her substantial estate equally between her three children.

The Court of Protection authorised a statutory will replacing G as executor with professional executors. On appeal, the nominated judge under Part VII of the Mental Health Act 1983 upheld the principal decision, subject to directions concerning the receivership and the terms of the will. The issue before the Court of Appeal was whether the nominated judge had failed to take account of MB’s wishes in her original will.

1. Appeal dismissed. The Court of Appeal made an order in the terms proposed by the Official Solicitor, including authorisation of the statutory will and appointment of partners in the new receiver’s firm as executors.
2. The governing approach, identified from Re D(J) [1982] Ch 237 at 243–244, is to consider the actual individual patient. The court must do what the patient would fairly do for herself if capable, with the benefit of advice from a competent solicitor.
3. That advice would address relevant changes since the original will, the discord between the patient’s children, the difficulties that G’s sole executorship would create, and the advantages and disadvantages of an independent professional executor. It would also address continuity between the receivership and executorship.
4. The size and nature of the estate made professional involvement difficult to avoid. Reasonable professional costs and expenses could properly be taken into account.
5. The nominated judge had exercised a wide discretion. There was no error of legal principle, and he was not plainly wrong in affirming the Master’s decision. The Court of Appeal was therefore not entitled to interfere.

1. Court of Appeal (Civil Division) — In an earlier procedural appeal, the court held that permission was not required for the second appeal under the CPR; the decision was reported at [2006] 1 WLR 278.
2. Nominated judge under Part VII of the Mental Health Act 1983 — Sir Francis Ferris dismissed G’s appeal from the Master’s decision after a rehearing. He remitted the matter for reconsideration after the receivership issue was resolved and directed changes to the proposed will.
3. Court of Protection — The Master authorised a statutory will replacing G as sole executor with professional executors, while retaining the equal division of the estate.
4. Court of Appeal (Civil Division) — The present court dismissed G’s appeal and made the order proposed by the Official Solicitor.