Making these very curious assumptions I have no doubt that the patient would execute an irrevocable settlement of a substantial part of his property; …"
53 As his Lordship observed, the assumptions of fact which he was required to make in ascertaining what the patient would actually have done if sane were, to use his Lordship's words, "very curious". They might, indeed, be described as highly artificial.
54 It is difficult to distinguish the process of making such artificial assumptions from merely making a determination on the basis of what a reasonable person with full capacity would do in the relevant circumstances of the case - that is, an objective assessment by the Court.
55 The artificiality of enquiring what the patient, if sane, would actually have done was not lost upon Fox J in In re Davey [1981] 1 WLR 164. Section 103(1) of the Mental Health Act had been amended in 1969 to include in a new sub-paragraph (dd) a power to give directions, for the purposes of s 102, for the execution of a will on behalf of the patient making any provision which the patient could (not would) have made if he were not mentally disordered. The applicants sought an order for the execution of a statutory will under the new provisions.
56 The patient was an unmarried lady of considerable property. At the age of ninety-two, when she still had testamentary capacity, she made a will in favour of various relatives. Shortly afterwards, her condition deteriorated and ultimately her estate was placed under the control of the Court of Protection. It was then discovered that, not long after she had made her will, she had been taken to a Registry Office by a man employed in the nursing home in which she resided and she had gone through a ceremony of marriage with him. Her acquaintance with him was as her carer in the nursing home and was very brief. He was forty-four years her junior. The effect of the marriage was to revoke the patient's will in favour of her relatives.
57 At the time of the application, the patient was about to die intestate and her husband of a matter of months would succeed on intestacy to a half-share in her estate. The relatives, who were beneficiaries under the revoked will, applied successfully for an order under s 103(1) directing execution of a new will in the same terms as the revoked will.
58 At 171, Fox J said:
"I do not think that, in substance, there is any material difference in the present case between the factors which the Court of Protection would have been required to consider if the question of what was a proper testamentary disposition for the patient had been fully argued before it and those which the High Court would have to consider on an application under the Inheritance Act. I can see that there may be some difference of emphasis; in an application under the Inheritance Act, Mr Davey as applicant has to establish that the will does not make reasonable financial provision for him. But in the Court of Protection, the essential question in the end would have been what if anything would be reasonable provision in all the circumstances for the various contestants ." [Emphasis added]
59 In In re D (J) [1982] 1 Ch 237, Sir Robert Megarry V-C rejected the objective test approach of Fox J in Re Davey and took the artificiality of the assumptions enunciated by Cross J in In re L (WJG) several stages further.
60 It is first necessary to recount briefly the facts of the case before Megarry V-C because, with very great respect, it seems to me that, in applying the reasoning in In re L (WJG) to the case before him, his Lordship misapplied the provisions of the legislation.
61 The application in In re D (J) was for the authorisation of a statutory will. At the time of the application, the patient was eighty-two years of age. She had five children, all still living. Twenty years earlier, while still of testamentary capacity, she had made a will leaving her house to one of her daughters, "A", and the residue of her estate to all five children equally. "A" had taken the major responsibility for looking after the patient. Some years after the will was executed, the patient sold the house, so that the specific devise to "A" was adeemed. "A" continued to assume the major role in caring for the patient, especially after she developed dementia and, accordingly, lost testamentary capacity.
62 As matters stood at the time of the application, when the patient died "A" would take only a fifth share of the whole estate. All children agreed that she should receive a larger share and should be compensated for the ademption of the devise in the still-extant will. The application, made by "A" and another daughter of the patient, therefore proposed a codicil giving "A" a specific legacy. The only dispute was as to the amount.
63 Because the proposed codicil was in favour of a daughter of the patient, it was for the benefit of a "member of the family" of the patient and therefore the application was within s 102(1)(b) of the Mental Health Act: see In re DML (supra). Reading together the relevant provisions of s 102(1)(b) and s 103(1)(dd), the Judge was empowered to:
"… do all such things as appear necessary or expedient for the benefit of members of the patient's family and for that purpose [the Judge] may make such orders as he thinks and, in particular, may make orders for the execution for the patient of a will making any provision which could be made by a will executed by the patient if he were not mentally disordered".
64 The power given in an application under s 102(1)(b) for a statutory will is not to do what the patient would have done if sane but, rather, to do whatever appears necessary or expedient to the Judge for the benefit of a family member. There is no enquiry required as to what provision the patient himself or herself might be expected to make. There is no requirement that the proposed will contain a testamentary disposition that would be made by the patient; all that is required is that the provision could be made. In other words, the statutory will cannot make a disposition of a kind which could not be effective in law if made by an ordinary will.
65 The words of s 102(1)(b) and s 103(1) strongly suggest that in an application under those provisions the approach is not that of the old lunacy cases - what would the patient have done himself, if sane - but, rather, what in all the circumstances is reasonably necessary or expedient for the benefit of the family member.
66 Curiously, Megarry V-C did not refer to the fact that the application before him was for the benefit of a family member of the patient and therefore fell to be dealt with under s 102(1)(b). His Lordship based his reasoning entirely upon the judgment of Cross J in In re L (WJG), although Cross J had made expressly clear at 140F-G that the application before him was made under s 102(1)(c), not s 102(1)(b), and it was for that reason alone that the applicants had to satisfy him that the beneficiaries of the proposed statutory will were persons for whom the patient, if sane, might reasonably be expected to provide.
67 At 243-244 of his judgment, Megarry V-C set out five propositions of general application in all statutory will cases. His Lordship said that those propositions emerged from the judgment of Cross J in In re L (WJG). I shall take each one in turn.
68 The first proposition was that it is to be assumed that the patient is having a brief lucid interval at the time when the will is made.
69 This proposition was advanced by Cross J in In re L (WJG) because s 102(1)(c) in terms required identification of beneficiaries or objects of the proposed settlement by reference to whom or what the patient might be expected to benefit if of sound mind. The proposition had no application to the case before Megarry V-C because s 102(1)(b), relating to members of the patient's close family, required no such identification test.
70 The second proposition was that it is assumed that during the lucid interval the patient has a full knowledge of the past, and a full realisation that as soon as the will is executed he or she will relapse into the actual mental state that previously existed, with the prognosis as it actually is.
71 This proposition, like the first, was expressly stated by Cross J in In re L (WJG) to relate to an application under s 102(1)(c). It was not relevant to the case before Megarry V-C.
72 The third proposition and its supportive reasoning should be set out in full:
"The third proposition is that it is the actual patient who has to be considered and not a hypothetical patient. One is not concerned with the patient on the Clapham omnibus. I say that because the will is being made by the court, and so by an impartial entity skilled in the law, rather than the actual patient, whose views while still of a sound disposing mind might be idiosyncratic and far from impartial. In In re Davey [1981] 1 WLR 164, 171, Fox J. is reported as saying, in relation to a will made by the Court of Protection, that the essential question was 'what if anything would be reasonable provision in all the circumstances for the various contestants', and it could be said that this indicates an objective approach made with the wisdom of the court rather than the approach likely to be made by the patient if restored to full testamentary capacity. I very much doubt if the judge meant to indicate this, and in any case I do not think it is right. The whole approach of Cross J in In re L: (WJG) was that of considering the particular patient, momentarily restored to full mental capacity, as being the settlor. Further, in section 102(1)(c), the question is one of making provision for persons or purposes 'for whom or which the patient might be expected to provide if he were not mentally disordered …'; and I think that this provision governs the making of a will for the patient, and contemplates the particular patient: and see In re CMG. [1970] Ch 574, 575. Before losing testamentary capacity the patient may have been a person with strong antipathies or deep affections for particular persons or causes, or with vigorous religious or political views; and of course the patient was then able to give effect to those views when making a will. I think that the court must take the patient as he or she was before losing testamentary capacity. No doubt allowance may be made for the passage of years since the patient was last of full capacity, for sometimes strong feelings mellow into indifference, and even family feuds evaporate. Furthermore, I do not think that the court should give effect to antipathies or affections of the patient which are beyond reason. But subject to all due allowances, I think that the court must seek to make the will which the actual patient, acting reasonably, would have made if notionally restored to full mental capacity, memory and foresight. If I may adapt Dr Johnson's words, used for another purpose, the court is to do for the patient what the patient would fairly do for himself, if he could."
73 A number of points should be made. First, his Lordship appears to believe, erroneously, that the application before him is one under s 102(1)(c).
74 Second, his Lordship believes that even in an application under s 102(1)(c) the task of the Court is to put itself in the position of the patient, if sane, and "make the will which the actual patient, acting reasonably, would have made … the Court is to do for the patient what the patient would fairly do for himself, if he could". In short, his Lordship is applying the test for the exercise of the prerogative discretion as to settlements inter vivos under the old lunacy cases.
75 I am not able to understand how such a conclusion follows from the words of s 102(1) and s 103(1)(c). Reading the relevant words of those two sections together, they provide:
"The Judge may, with respect to the property and affairs of a patient, do all such things as appear necessary or expedient for making provision for the persons, not being members of the family, or for purposes, for whom or for which the patient might be expected to provide, if not mentally disordered, and the Judge shall, for that purpose, have power to make such orders as he thinks fit for the execution of a will making any provision which could have been made by a will executed by the patient."
76 These words do not require the Judge to put himself or herself into the shoes of the actual patient, with all his or her idiosyncrasies, and to make the will which he or she would have made if sane. The words require the Judge first to identify those persons, not being family members, or those purposes, for which the patient, if sane, might be expected to provide - a question of fact ascertained by the particular circumstances of the patient and by reference also to any wishes which he or she might have expressed when of sound mind. Having ascertained those persons or purposes, the Judge is then to make such provision for them as may "appear necessary or expedient". Appear to whom? Clearly, to the Judge, not to the patient.
77 In determining what dispositions "appear necessary or expedient" the Judge can only apply an objective approach, as Fox J suggested in In re Davey, consistently with the same contemporary concepts of fairness, justice and moral obligation as inform the family provision legislation.
78 So interpreted, the provisions of s 102(1) and s 103(1) establish a sensible, pragmatic and easily understandable means of dealing with the property of an incapacitated person. Interpreted in the way in which Megarry V-C did, the provisions become much more difficult to apply. Courts were required to perform what one High Court Judge later described as "mental gymnastics": Re P [2009] EWHC 163 (Ch), at [38] per Lewison J.
79 The third point to notice is that Megarry V-C himself recognises the inherent difficulty of returning to the principle applied in the old lunacy cases and doing what the patient would have done for himself or herself. What if the Judge were convinced that the patient, though being restored to testamentary capacity, would have made a testamentary disposition which was quite foolish or irresponsible - for example, he would have given all of his estate to a 'gold digging' lover, at the expense of his wife and children. Should the Judge do likewise?
80 Megarry V-C thought not - thus his qualification that the Court should not give effect to the "antipathies or affections of the patient which are beyond reason". But where does this over-riding qualification find expression in the statutory provisions? If it is to be found in the opening words of s 102(1), which vest in the Judge the power to do what appears to him or her necessary or expedient, then one is driven back to the position that it is not the patient's supposed subjective intention which governs the exercise of power but, rather, the Judge's discretion, exercised upon the basis of what is seen, objectively, to be reasonable.
81 The fourth proposition advanced by Megarry V-C was that during the hypothetical lucid interval, the patient is to be envisaged as being advised by competent solicitors.
82 This proposition requires an assumption - in many cases counter-factual - that the patient not only would have had competent legal advice but would have acted in accordance with it. Experience shows that people with sound testamentary capacity not infrequently disregard legal advice as to the reasonable disposition of their estate.
83 The fourth proposition therefore seems directed to ensuring that the result of the statutory will authorised by the Judge is fair and reasonable, judged by objective standards, because those are the standards which a competent solicitor would be assumed to recommend the patient to observe. This proposition dictates reliance upon an obvious fiction in order to produce a result said to represent the supposed actual intention of the patient.
84 The fifth proposition advanced by his Lordship is that, in all normal cases, the patient is to be envisaged as taking a broad brush to the claims on his bounty, rather than an accountant's pen.
85 That approach would doubtless be taken by a Judge exercising discretion in accordance with the opening words of s 102(1), but why should such an approach be attributed to the actual subjective intention of the patient? Again, the proposition seems to be advanced in order to produce a result that is objectively reasonable in all of the circumstances.
86 The approach of Cross J in In re L (WJG), as developed by Megarry V-C in In re D (J), to the application of s 102 and s 103 both as to settlement inter vivos and as to statutory will cases, came to be know as the "substituted judgment" approach: Re P (supra) at [15].
The high water mark of artificiality