LM, Re [2015] EWCOP 91 (08 December 2015)

Posted on Thursday, September 8th, 2016

Picture of Alan PickardThis was an application to execute a statutory will on behalf of LM, whose assets were significant following the receipt of an award from the Criminal Injuries Compensation Authority. The main question here was the percentage of her estate that should go to charity.

Background

LM was adopted after she had been assaulted by her birth mother at a young age. This assault left her with severely impaired levels of functioning which was permanent and consequently, LM lacked testamentary capacity.

In September 2007, LM was awarded £3,255,197 from the Criminal Injuries Compensation Authority to compensate her for the injuries sustained and provide for her continued care. The remainder of her estate comprises of assets valued at £2,710,700. Her income is £52,929 pa, expenditure is £139,938 pa and there was an NHS care package of £110,032 pa.

LM had not made a will and therefore, in the event of her death, intestacy rules would apply meaning her estate would pass to her adoptive parents.

The Applicant argued that a statutory will should be written setting out the appointment of Executors/Trustees, that LM’s chattels would pass to her adoptive parents and that the residue to be divided into 25% equal shares between the family members.

The Official Solicitor agreed with the drafting of a statutory will but submitted that at least 20% of LM’s estate should pass to a charity relevant to LM.

LM’s family, through the applicant, conceded that 5% of the estate only should pass to charity. The issue therefore was the size of any gift to a charity or charities from LM’s estate.

The Law

A decision, as to the execution of LM’s will, must be made in LM’s best interests in accordance with Section 4 of the Mental Capacity Act 2005. 

Decision

District Judge Mort concluded at paragraph 46 of the judgment that “it would be in LM’s best interests for the majority of her estate to be divided between her family in recognition of their love and devotion.” Additionally, the court was satisfied that: “LM would wish to gift a proportion of her estate for charitable purposes in recognition of the considerable help she has received from the community.” 

When assessing the percentage of the estate to be gifted to charity, the recommendation of 20% as submitted by the Official Solicitor was accepted. The rest of the estate was then to be divided equally between named family members. District Judge Mort considered this reflected LM’s best interests and was a fair balance between LM’s family and charity.

The full judgment can be read here.

Summary written by Alan Pickard.

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