As the world grapples with the implications of a global health pandemic, many have turned their minds to estate planning and will-making. The recent Certainty Expert Webinar from Tom Dumont QC, Barrister, Radcliffe Chambers titled ‘Execution of Wills, especially in a Lockdown’ highlighted the very real challenges faced by prospective donors in the current climate.
Additionally, social distancing measures and Coronavirus regulations have created particular problems for those individuals who lack capacity to execute a new Will.
This brief article explores the impact that COVID-19 has had on Statutory Will applications to the Court of Protection and provides practical tips for protecting incapacitous peoples’ estates in the current climate.
HM Courts and Tribunals Service has published a summary of business priorities during the Coronavirus pandemic. The summary includes a hierarchy of priority for work within the Court of Protection.
Statutory Wills where the prospective donor is near end of life are included in the list of ‘work that must be done’. Applications where the prospective donor is not near end of life are under the heading of ‘work that HMCTS will do their best to do’. Applicants should therefore make it clear in the application whether the Statutory Will is urgent based on the prospective donor’s life expectancy. Medical evidence to substantiate this urgency would also be useful if it is possible to obtain.
Once a hearing has been listed, Mr Justice Hayden has issued guidance on 31 March 2020 confirming that all hearings are to be conducted remotely by default until further direction. This presents an obvious challenge for parties who do not have access to (or knowledge of) the technology required to participate in remote hearings. Parties should communicate any concerns that they have about accessing the court as alternative arrangements may be possible.
In my experience, remote hearings during COVID-19 have also led to a more conciliatory court process with an increase in consent orders being lodged. Remote hearings are also likely to be a less intimidating process for lay parties, who can now attend a hearing from their living room rather than a court building.
Obtaining wishes and feelings of P
As with any application to the Court of Protection, the wishes and feelings of the protected party (i.e. the prospective donor) will be an important consideration for the Court when deciding what is in their best interests. Particularly for Statutory Will applications, where the application may be for a Will that differs from an earlier testamentary expression, it is important to obtain the prospective donor’s up-to-date wishes and feelings wherever possible.
As a starting point for ascertaining a prospective donor’s wishes and feelings, it is a good idea to locate any previous wills that they may have made. This is likely to indicate what their wishes and feelings were when they had testamentary capacity pursuant to section 4(6)(a) of the MCA 2005. Certainty the National Will Register offers the ability to conduct a Will Search in Court of Protection matters which can be conducted either via their website, through their website with the Official Solicitor and members of Certainty the National Will Register can conduct a Will Search through their TOUCH accounts.
On 13 March 2020 Mr Justice Hayden issued guidance on visits to protected parties. The guidance provides that: “visits should only be made to P where that it is assessed as absolutely necessary. Alternative arrangements should always be considered first, such as telephone, FaceTime and Skype conferencing…Visits to care home are to be strongly discouraged”
Those helping to prepare a Statutory Will application should therefore explore alternative ways of gathering the prospective donor’s wishes and feelings like a skype conversation or FaceTime. Consideration should be given to making sure that their wishes and feelings are obtained free of any external influence and anyone recording their wishes and feelings should be alert to who else is present with the prospective donor at the time.
Assessment of P’s testamentary capacity
Despite the difficulties with obtaining capacity assessments in the current climate, the court will still expect to see evidence of a prospective donor’s testamentary capacity (pursuant to the well-known test set by Cockburn CJ Banks v Goodfellow (1870) LR 5 QB 549).
In these exceptional circumstances, alternative options for assessing the prospective donor’s testamentary capacity could be explored, such as:
• Assessments conducted by skype or telephone. Many capacity assessors have started to offer services for remote capacity assessments but these may not be appropriate for every individual. Also, it should be noted that many care homes don’t allow capacity assessments to take place on the premises and so, if the prospective donor is in a care home setting, this should be discussed with the care home manager beforehand.
• A GP or private medical practitioner could be asked to produce a desktop assessment of the prospective donor’s capacity based on their medical records.
We are yet to receive any guidance from the Court regarding the suitability of these creative ways of assessing a prospective donor’s capacity during COVID-19. My general advice would therefore be to keep a contemporaneous note of any steps taken to obtain this evidence and to obtain full and detailed assessments wherever possible.
Despite the Court’s assurance that urgent Statutory Will applications are a high priority, cases can still take quite a long time to resolve. In those circumstances, parties may consider applying for a holding Will which would be a measure to protect the prospective donor’s position in the interim.
The Court of Protection has power under section 48 of the Mental Capacity Act 2005 to authorise a holding Will if there is reason to believe that the prospective donor lacks testamentary capacity and that it would be in their best interests to do so. This ‘holds the ring’ in the event that the prospective donor dies before the substantive Statutory Will application is concluded.
There can be little doubt that the difficult and urgent circumstances presented by COVID-19 make it impossible to approach a Statutory Will application in the normal way. However, rather than holding off making an application, prospective donors, and whoever is assisting them, are encouraged to consider innovative and proactive approaches to these applications.
This article is not intended as, and it is not, legal advice appropriate to the individual situation of any particular person. Any person requiring specific support or assistance should seek independent legal advice and may benefit from The National Will Register’s available guidance on preparing a Will.
This article was written by Alex Cisneros, Barrister at Outer Temple Chambers. Alex Cisneros has appeared in some of the leading cases in the property and affairs jurisdiction of the Court of Protection such as Various Lasting Powers of Attorney, Re  EWCOP 40 and Office of the Public Guardian v PGO & Ors, Re: BGO  EWCOP 13. For more information and support from Alex concerning Statutory Wills such as those discussed in this article, or in relation to litigation concerning mental capacity generally please contact Matt Sale at 020 7427 4910, or Peter Foad at 020 7427 0807.