Where a person enters into a marriage without the mental capacity to do so, that marriage can be held to be voidable under the Nullity of Marriage Act 1971. However, the impact of the Matrimonial Causes Act 1973, Section 12(c) is that the marriage will not be null and void, but rather merely voidable. This means that the marriage, even though unlawfully entered into, continues to exist up until such time as it is declared void by the court.

This presents a problem in relation to how that person’s estate is dealt with. In England and Wales a marriage revokes all previous wills, pursuant to Section 18(1) of the Wills Act 1837. The unlawful marriage, even if it is later annulled, it was an effective marriage until that date. The unlawful marriage revokes a lawful will.

Unless there has been a later will executed, the result is that the person’s estate passes by intestacy. It is not possible to retrospectively revoke the marriage and reinstate an earlier will. This surprising interpretation of the statute was confirmed in the leading case on the matter, that being Re Roberts [1978] 1 WLR 653.

The position is particularly problematic if the marriage is never annulled. In that case, if there is an intestacy, the majority of the estate will go to the spouse, the very one who arranged the predatory will.

Whilst there might be potential claims under the Inheritance (Provision for Family & Dependants) Act 1975, such claims may not be successful.

It is therefore essential, if there is a predatory marriage, for the victim to execute a new will. If the person who did not have capacity to enter into a marriage does not have capacity to write a new will, then a statutory will should be applied for.

A standard statutory will case might take over a year to finalise, although if health is an issue, an interim holding will could be achieved in a matter of hours by specialist lawyers.

Of course, the best solution is to prevent a predatory marriage. In our next blog we discuss how to enter into a caveat with the registrar of marriages preventing such a marriage. In subsequent blogs we will discuss statutory wills, then tax saving estate planning and finally possible applications for reasonable provision from an estate.

What do you do if you want to stop a forced marriage?

What is a forced marriage?

To be able to marry, both parties to the proposed marriage must give their full and free consent.

A forced marriage is a marriage which takes place without full and free consent.

The lack of ability to consent to a marriage is not limited to those who lack the necessary mental capacity to do so.

The Forced Marriage (Civil Protection) Act 2007 came into force on 25 November 2008. It allows the Family Court to make an FMPO, under section 63A of the Family Law Act 1996,to protect an individual who is being forced into a marriage or already in a forced marriage.

 

How to apply for a Forced Marriage Protection Order

An application for an FMPO must be made on form FL701. The application can be made by the following types of applicants:

• By the Protected Party;
• A relevant third party; or
• Somebody on their behalf.

An applicant falling within the category of a ‘relevant third party,’ such as a Local Authority, can make an application on behalf of the Protected Party without needing the leave of the court.

An individual applying on behalf of the Protected Party, and who does not fall within the category of a ‘relevant third party,’ such as a friend, boyfriend or girlfriend of the Protected Party, requires permission from the court to make the application. The Form FL430 must be completed to request permission from the court

Considerations for a Forced Marriage Protection Order

The court must consider the following when deciding whether to and, if so, in what manner, to make an FMPO; all the circumstances, including the need to secure the health, safety and well-being of the Protected Party. When considering the Protected Party’s well-being the court, as considers appropriate in the light of the person’s age and understanding, will have regard to their wishes and feelings, so far as they are reasonably ascertainable.

It is possible to apply for an FMPO in an emergency situation and without needing to give notice of the application to anyone else.

A power of arrest can be attached to an FMPO.

A breach of an FMPO is a contempt of court, carrying a maximum term of imprisonment of up to two years.

Since the enactment of the Anti-Social Behaviour, Crime and Policing Act 2014 a breach of a Forced Marriage Protection Order is also a criminal offence carrying a maximum term of imprisonment of up to five years.

Ffion is a Paralegal in the Court of Protection department based in the London Bridge office. She joined Anthony Gold in August 2021 and assists Partners David Wedgwood and Alexandra Knipe with various Property and Affairs Deputyship matters. Contact Alexandra Knipe on 020 7940 4060 or at alexandra.knipe@anthonygold.co.uk.

CASE ANALYSIS: Lexis®PSL Local Government (EXC0004343)

(LA v ST (by the OS) (Costs Application))

 

This case involved an application for costs made by the Official Solicitor following a Local Authority’s attempts to restrict a woman’s (‘ST’) access to social media as part of an ongoing welfare case. The Official Solicitor questioned the lack of specific capacity evidence around ST’s use of social media and asserted that the proposed restrictions were unnecessary and disproportionately restrictive. The Court arranged a one-day hearing and directed the Local Authority to file relevant capacity evidence and both parties to file position statements. The Local Authority was late in submitting its position statement, which conceded there was insufficient evidence to rebut ST’s capacity to use social media and that therefore the attended hearing was unnecessary. The Court ordered, pursuant to Court of Protection Rules 2017, r 19.5, the Local Authority to pay 85% of the Official Solicitor’s costs incidental to the hearing.

What are the practical implications of LA v ST?

This case looks at the principles guiding judges when faced with a costs application within personal welfare cases, particularly the circumstances where judges will depart from the ‘general rule’ as costs on the basis of the parties’ conduct.

In this case, the judge reinforces the importance of parties (and particularly the party seeking the action) to conduct themselves in accordance with the directions made by the court. Furthermore, parties are required to continually test the strength of their case, so as to avoid unnecessary expenditure of time and money.

The judge opined that whilst the case was properly brought, and that there was clearly no bad faith on the part of the local authority, the local authority would have ascertained their case was weak much earlier if they had complied with the Court’s directions. The judge also noted that at no point did the local authority seek an extension to the timetable or vacate the hearing.

 

What was the background of LA v ST?

The ongoing proceedings concerned an 18-year-old woman, (‘ST’) who had been subject to emotional, physical and sexual abuse and had a diagnosis of learning disabilities and ADHD. In late 2021, ST was reported missing and on credible concerns for her safety, the Local Authority successfully obtained an urgent Court Order moving her to a place of safety and for her to be deprived of her liberty there. The Official Solicitor, acting as ST’s litigation friend, and the Local Authority agreed there was sufficient evidence of her incapacity to make decisions as to her residence and care and an interim declaration under Mental Capacity Act 2005, s48, was made.

During a short, remote hearing on 15 February 2022, the Local Authority sought to restrict ST’s use of social media, as they feared she would make contact with her abusers and might give away her address, thereby exposing herself to a risk from her abusive partner.

The Official Solicitor argued that there was no specific capacity assessment dealing with ST’s capacity to make decisions about the use of social media, and that even if she were to lack such capacity the restrictions proposed would be unnecessary and disproportionately restrictive. Accordingly, the judge scheduled an attended hearing for 03 March 2022 and directed the Local Authority to file; ST’s capacity assessment to make decisions as to her access to the internet and social media, alongside statements on its reasoned assessment of the risks and impact of ST’s continued social media access and position as to ST’s best interests. These were to be filed by noon on 25 February 2022.

 

Three further deadlines were set out:

1. By 4pm Friday 25 February 2022, the local authority shall file and serve an updated and paginated court bundle;
2. by 4pm Monday 28 February 2022, the local authority shall file and serve a position statement;
3. by 4pm Tuesday 1 March 2022, the solicitors for ST shall file and serve a position statement.

 

The Social Worker’s statement recorded that ST had been accessing social media, but that there had been no inappropriate posts. The deadline to file the statement was noon on Friday 25 February, however, the statement was filed late on 25 February, around 5pm.

The local authority’s position statement was also not filed as ordered at 4pm on Monday 28 February 2022. On Tuesday 1 March 2022, the Official Solicitor served their position statement on the local authority in compliance with the directions, but as it had not received the local authority’s statement, it was evident the author did not know what the local authority’s position. That position statement stated that the local authority’s case on capacity and best interests was weak.

The local authority’s position statement was sent to parties and court on 02 March 2022, late on the day before the hearing. The statement conceded that there was insufficient evidence to rebut the presumption of ST’s capacity to make decisions about accessing the internet and social media.

The attended, day-listed, hearing on the 03 March was therefore needless.

 

What did the court decide?

The Law

The Judge considered that the ‘general rule’ on costs in personal welfare cases is that that there will be ‘no order as to costs’ pursuant to Court of Protection Rules 2017, r 19.3. However, Court of Protection Rules 2017, 19.5(1) allows for the Court to depart from that general rule, taking into account:

1. the conduct of the parties;
2. whether a party has succeeded on part of that party’s case, even if not wholly successful; and
3. the role of any public body involved in the proceedings”

 

When considering ‘conduct’, Rule 19.5(2) further delineates the factors the court must take into account, as including:

1. conduct before, as well as during, the proceedings;
2. whether it was reasonable for a party to raise, pursue or contest a particular matter;
3. the manner in which a party has made or responded to an application or a particular issue;
4. whether a party who has succeeded in that party’s application or response to an application, in whole or in part, exaggerated any matter contained in the application or response;

 

Findings LA v ST

The judge considered that by 25 February 2022, the Local Authority “knew or ought to have known” that their case was weak. The judge also noted that at no stage did the local authority seek an extension to the timetable, or to vacate the 3 March hearing.

The judge confirmed that the Local Authority’s conduct, in failing to comply with the directions order, fell below a proper standard. Further, in light of the weak capacity and best interests evidence obtained, it was unreasonable for the Local Authority to continue to pursue the social media restrictions. The judge confirmed that had it not been for the Local Authority’s failings and breaches, the parties would not have travelled to the all-day, attended hearing and incurred the associated costs.

Accordingly, the judge was satisfied, given the Local Authority’s conduct, that it was appropriate to depart from the ‘general rule’ and ordered the local authority to pay 85% of the costs incurred by the Official Solicitor of and incidental to the hearing on 3 March 2022.

Case details of LA v ST

• Court: Court of Protection
• Judge: Judge Burrows
• Date of judgment: 14/3/2022

The question considered in the case of Cambridge University Hospitals NHS Foundation Trust V AH

Facts:

AH is a 56 year old woman who caught COVID in December 2020 and was admitted to hospital with severe symptoms. Unfortunately, her condition continued to deteriorate, she was paralysed from the neck down and reliant on a mechanical ventilator to assist with her breathing.

The Trust made an application to the Court to establish whether it was in AH’s best interest to take her off the ventilator. AH would not be able to survive without it and as a result the Trust wanted the Court’s judgement before they made the decision.

AH’s medical reports stated that she was minimally conscious with no prospect of recovering, but AH’s family believed that as part of her religious, cultural and family values she would not want to be taken off the vital support that was keeping her alive.

The Judge Mrs Justice Theis DBE weighed up the expert opinions from AH’s care team and her family who would have her best interests at heart. The Judge started with the presumption that it is in AH’s best interest to stay alive, however consideration must be given to the social and psychological impact her illness has had alongside the nature of the ongoing medical treatment.

The Trust were aware that since January 2021 to July 2021 the clinical team had observed the deterioration in her ability to recall information and to respond to complex questions. The medical reports stated that she was minimally conscious with no prospect of recovering. They warned that AH was exposed to a high risk of a sudden fatal event, such as gastric internal bleeding or septic shock, which would abruptly end her life and take away the family’s chance to say goodbye. The Judge acknowledged that AH had not suffered any significant issues during the 11 months she had been admitted to the ICU, which was testamentary to the high stand of care provided by the medical team.

Those involved with AH’s care were certain that her condition was not going to improve as a considerable period of time had now passed and they could be certain of this prognosis. As a result, the high level of medical treatment that AH was in receipt of would need to be maintained and it was too burdensome to be continued at home.

Consequently, The Judge was left with the decision whether it was in AH’s best interest to leave her to continue to receive treatment until she succumbed to an unpredictable catastrophic event or move AH to a private place where she could receive end of life care and be at the heart of her family.

Judgement:

The Judge decided that was in AH’s best interest to take her off the ventilator as there was no prospect of change and the continued deterioration of AH’s health would mean her care needs would become more challenging.

The Judge listened to the family members and their reasons why AH should remain on the ventilator, but appreciated that whilst the family believed she had come to terms with her condition and she was showing awareness and consciousness when they spent time with her, an increase in awareness is not to be equated with an improvement in the patient’s quality of life.

The Judge appreciated that the family were fighting on behalf of AH because it was a very difficult time for them and it was the best way to deal with their grief. She saw how AH was the centre of their family and that she was loved by them all which meant their opinions needed to be considered.

Subsequently, the Judge decided that AH should be taken off the ventilator and placed into end-of-life care. This was thought to be AH’s best interest as it would enable her to spend time with her family as they were so important to her and receive comfortable treatment.

We are delighted to announce that Emma Tante, Senior Associate in the Court of Protection team, has been selected to join the Committee behind The Professional Deputies Forum (PDF).

The PDF is a representative body for professional Deputies and those who work alongside them to share news, views and best practice, while also providing a collective voice to act as a conduit between members and third parties such as the Office of the Public Guardian, the Ministry of Justice, the Court of Protection and the Law Society.

The PDF has contributed positively to the area of practice and has become widely recognised by key organisations, Court of Protection practitioners and other professionals working in the area. Their efforts have been welcomed by many and we have no doubt they will continue to help raise the quality of services delivered to vulnerable individuals and their families. Emma looks forward to joining the PDF and being a part of their future.

The PDF conference takes place on 22 September 2022 in Birmingham. You can buy tickets at www.deputiesforum.co.uk/events/pdf-conference-2022.

To be or not to be – marriage and the Court of Protection

The recent case of WU v BU (by her litigation friend, the Official Solicitor) [2021] EWCOP 54 is interesting and demonstrates a situation where P was deemed to have capacity to marry (or enter into a civil partnership) but the Court engaged its inherent jurisdiction for the protection of a vulnerable adult, even in circumstances where that individual had capacity to make an independent decision as to their marriage.

P was in her 70s and had formed a relationship with a male (NC) in his 40s. That relationship was initially described as a friendship but progressed towards some level of greater intimacy. P was diagnosed as suffering from vascular dementia and wanted NC to remain part of her life and indeed she very strongly expressed the view that NC was pivotal to her future happiness.  P’s daughters raised various concerns about NC and the nature of his relationship with P and the Court was asked to intervene.

The question before the Court was whether P should be prevented from having contact with NC and whether she had capacity to enter into a civil partnership with him, as had been proposed by the couple. P was a wealthy lady with assets in excess of £1.3m and the likelihood of inheriting significant wealth in the future, from her 90-year-old father.

NC had a chequered employment history and early on in their friendship, requested that P loan him money. NC was found to have incrementally exercised control over P’s affairs, and it was demonstrated within the evidence filed at Court, that NC’s relationship with P was characterised by financial motive.

NC had access to P’s mobile phone and text messages (many of which he replied to on P’s behalf); he sought to put distance between P and her daughters especially during periods when P was unwell; NC sought to intervene in P’s arrangements with her accountants; NC made arrangements for P to draw up a new Will with a firm of solicitors with whom P had no previous dealings.

In addition to those demonstrable patterns of behaviour, NC had numerous convictions for blackmail and dishonesty including an arrest in 2020 over an attempted liquidation of one of P’s investment portfolios. NC’s control extended to P’s personal wellbeing, including arrangements for her medical care and diet. NC also dismissed P’s carer, who he felt was not working to the appropriate standard.  The expert evidence in the case demonstrated that NC had an agenda to eliminate all checks and balances surrounding P’s affairs.

The Court of Protection ultimately ordered that there be no contact between P and NC. An injunction preventing contact was issued, with a penal notice attached due to NC openly breaching previous interim orders.  The Judge made this order whilst recognising that it would cause significant distress to P.  He therefore indicated that whilst this was a final order, he wanted to give P some comfort that it would not necessarily be a ‘forever’ order.  He suggested that P engage with a period of respite away from NC and try to understand how NC’s influence had impacted on her life and the risks to P’s wellbeing that his behaviour had created.

The Judge recognised however that the injunctive order alone would not be sufficient to prevent P from entering into a marriage or civil partnership with NC, as a result of his undue influence. The Judge felt it necessary on the facts of this case, to make a force marriage order for the protection of P. This would prevent P from being able to enter into a marriage/civil partnership with NC, even though P had been found to have capacity to enter into a marriage generally. The Court was satisfied that P would not be giving valid consent to such a marriage or civil partnership and exercised the Court’s inherent jurisdiction to protect P from the perceived harm.

As a partner specialising in Court of Protection work, Alexandra Knipe leads a highly specialised team dedicated to supporting clients who have sustained injuries through accidents, clinical negligence, or mismanagement at birth. Contact Alexandra Knipe on 020 7940 4060 or at alexandra.knipe@anthonygold.co.uk

Most people understand the importance of making a will. However, it is easily forgotten that the loss of mental capacity could also diminish our ability to make a Will. This is known as loss of ‘testamentary capacity’ and could occur instantly, for example, as a result of a road traffic accident, or gradually, through a neurological illness such as dementia.

So, what happens when you no longer have testamentary capacity but need to make a Will or update a Will?

What is Testamentary Capacity?

Firstly, let’s deal with what is meant by testamentary capacity. The legal test for this was established in the case of Banks v Goodfellow (1870) and must be applied as follows:

In order for a testator to be considered to have testamentary capacity he must, at the time of making the Will:

• Be able to understand the nature of his act and its effects;
• Be able to understand the extent of the property of which he is disposing;
• Be able to comprehend and appreciate the claims to which he ought to give effect, (i.e. the testator must understand who he might like to gift to and what claims those or other people may have against the estate as a result of his actions); and
• not be suffering from a mental disorder which would inhibit his ability or cause him to dispose of his property in a way that he would not have done had he been of sound mind.

Why Might a Person Need a Statutory Will?

Under the Mental Capacity Act 2005, the Court of Protection has powers to authorise the making of a Statutory Will on behalf of a vulnerable person (P) who lacks testamentary capacity. This may be necessary if, for example:

• P does not have a Will;
• P’s estate has increased in value (e.g. as a result of an award for damages);
• P’s estate has reduced in value (e.g. due to high costs for care);
• For the purposes of tax-planning;
• The validity of P’s Will is in question;
• A change in the circumstances of P or the named beneficiaries.

Anyone who wishes to make an application to the Court of Protection on behalf of someone else for a Statutory Will must seek permission from the Court, however, the following people are exempted from seeking permission:

1. P;
2. A Deputy appointed by the Court;
3. An attorney under a registered Enduring Power of Attorney;
4. The donor or donee of a Lasting Power of Attorney;
5. Persons who may become entitled to P’s estate under the rules of intestacy or under an existing Will; and
6. A person for whom the vulnerable person might be expected to provide if they had capacity.

How do you get a Statutory Will?

An application should be made to the Court (once permission is granted, if applicable) and the application can be made on an urgent basis, if necessary. The Court will require sight of medical evidence confirming that P lacks testamentary capacity, the relevant application forms and a witness statement submitted by the person making the application.

The statement should provide the Court with all the significant details of the matter, the proposed draft Statutory Will, the reasons as to why the proposed Statutory Will is in P’s best interests, a thorough breakdown of P’s assets and debts and P’s likely future needs based on their current condition.

It is important to note that the issued application must then be served upon the relevant Respondents, and consideration will need to be given as to who these individuals may be. The Respondents will usually include beneficiaries under the current Will or proposed Statutory Will.

What does the Court consider?

It is the Court’s duty to consider the application and decide whether a hearing is required. More complex cases will necessitate a hearing and, where money is involved, the application can become contentious.  The Official Solicitor is often invited to act for P to represent their interests in the proceedings.

The Court must consider the following issues of best interest:

1. P’s past and present wishes and feelings and, in particular, any previous Wills made by P;
2. The beliefs and values that would be most likely to influence P’s decision if he had capacity; and
3. Any other factors P would likely consider if he still had capacity.

Per rule 156 of the Court of Protection Rules 2007, it is generally mandated that costs of proceedings are paid from P’s estate.