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Family Law

The leading authority on all aspects of family law

28 MAR 2013

PROPERTY AND AFFAIRS: NT (The Deputy of the First Respondent) v FS (By His Litigation Friend, The Official Solicitor) and Others [2013] EWHC 654 (COP)

(Court of Protection, His Honour Judge Behrens, sitting as a judge of the Court of Protection, 26 March 2013)

 The deputy applied for authority to execute a statutory will in circumstances where there was no doubt that the man lacked capacity to make a will and in which there were numerous potential beneficiaries in dispute over provisions to be made under such a will.

 The man suffered from moderate to severe Alzheimer's and dementia. He had no recall of his assets, of his immediate or extended family and how his will could affect them. His estate was worth in the region of £3m, largely consisting of property. He currently lived with his long-term partner who cared for him. In addition to her the other potential beneficiaries were: his mother, his son, his previous partner, his three siblings and his uncle.

 The judge determined that he should take account of an earlier document which was purported to be a will under the terms of s 4(6) of the Mental Capacity Act 2005. It demonstrated that the man wished at the time to make provision for his mother and siblings. However, it was not a magnetic feature nor a starting point for a determination of the man's best interests in terms of a statutory will.

 The man's current partner, of 28 years, who had cared for him since the onset of his illness was entitled to 35% of the estate, taking into account the moral obligation owed to her and the fact that the man made a minimal contribution to the household when the woman was working. The man's siblings and uncle would receive 22% jointly and the remaining 43% was left in favour of the son. The deputy was to pay the mother £50,000 as a one-off gift given the strong relationship between the man and his mother and his past contributions made for her care.


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