07 December 2018 - Article
Christopher Tidmarsh QC and Mathew Roper represented the Official Solicitor in a three day appeal before Charles J against an order authorising the making of a statutory will.
P is an 86 year old widow with two sons: A and D. The background to the statutory will application is that whilst P had capacity, she had brought proceedings in the Chancery Division against A, making serious allegations of undue influence concerning the transfer of various properties. However she lost capacity to litigate and MH was appointed her litigation friend.
The Chancery proceedings were then settled. One of the terms of the settlement was that MH would apply to become her deputy and, once appointed, would apply for a statutory will that divided P's estate between her two sons in equal shares.
MH duly made the application but the COP judge, HHJ Karen Walden-Smith, did not authorise the division of P's estate in equal shares. Instead she authorised a will dividing the estate 25% to A and 75% to D. In doing so she accepted the argument of the Official Solicitor that that the settlement agreement was not a contract to make a will and did not bind P or her litigation friend.
Charles J produced a lengthy judgment and allowed the appeal.
Christopher and Matthew will discuss the interrelation between compromises in the Chancery Division and the Court of Protection, wishes and feelings, the consideration of P “being remembered with affection for having done the right thing” and other mysteries.