Fairweather v AG & Anor

Summary

AG is a young woman who has a substantial estate derived from an NHS compensation award. Her professional deputy sought the court’s approval of a statutory will under which AG’s whole estate would pass to her mother, AB, or her brother, GB. The concern driving the application was that, on AG’s intestacy, her estranged father, CG, would be entitled to share equally with AB.

As part of that application, the deputy applied to dispense with service on CG, relying on AB’s concern that contact would expose her to violence, supported by evidence that CG had received a police caution for assault in 2006.

District Judge Ellington dismissed the application to dispense with service. Applying Re D [2016] EWCOP 35, and notwithstanding CG’s absence of some twenty years and the historical evidence of violence, she held that the evidence of a current risk of harm was insufficient to override CG’s Article 6 right to participate in proceedings that would directly affect his inheritance. At [43] she stressed that the question before her was procedural, whether CG should be served, and not a best interests decision.

Comment

DJ Ellington’s distinction at [43] between the procedural question of service and the substantive best interests decision about the will is central to the judgment: these two stages must not be run together.

The strength of the family’s reasons for wanting CG to receive nothing is irrelevant to the earlier and separate question of whether he should be notified and given an opportunity to take part.

For practitioners, the key point is that dispensing with service where a third party has their own financial interests at stake requires clear, up-to-date evidence of risk. A single historic incident, or general concerns (even against a background of long estrangement) will not normally be enough to override that person’s Article 6 right to participate. There may also be intermediate steps short of full non-service, such as an application to restrict the information disclosed to a particular family member if they are notified.