LCN v KF, AH, EH and CIF (by his litigation friend the Official Solicitor)



Judge: District Judge Beckley

Citation: [2019] EWCOP 1

Summary

In this case P (CIF) was seriously injured at birth. By a litigation friend, he brought a claim for damages against the hospital trust responsible for his care at birth. That resulted in an award of damages consisting of a lump sum of over £800,000 plus substantial periodical payments.

He was born on 2 October 2005 and by November 2018 it was clear that he was critically ill. At that time, he was living in a home bought with his award, being cared for by a couple (AH and EH) who were his special guardians.

P was too young to make a will and the MCA mirrors that restriction in relation to statutory wills (section 18(2)). On intestacy, P’s estate would be divided between KF (his mother) and his biological father who had denied paternity, played no part in P’s life and whose whereabouts were unknown.

P’s deputy (LCN) thus applied as a matter of urgency on 20 November 2018 for the court to authorise the execution of a settlement by P of his estate, on P for life and thereafter the property where he lived to pass free of inheritance tax to EH and AH, the residue to KF.

The application was heard and determined on 26 November and P died on 4 December.

All parties agreed that a settlement was in P’s best interests and that the appropriate guidance was to be found in cases on statutory wills. So far as service on the biological father was concerned, that had not been attempted as his whereabouts were unknown and he was not a party. By reason of the urgency, the application continued without any attempt to notify him. The final order required an attempt to serve him with the order and gave him permission to apply within 21 days of service.

The only issue between the parties that the court had to decide was the incidence of inheritance tax. KF, AH and EH were unable to agree that partly because of the emotional trauma caused by P’s condition and prognosis. In the end the court decided that P would have wanted EH and AH (and their children) to have the security of the home without the worry of having to raise the tax so the gift to them was tax free.

Comment

This shows how the Court of Protection can move swiftly in cases where P’s life expectancy is short and a statutory will is needed (or in this case a settlement). It also illustrates the rare type of case where the court will proceed even though a person who would benefit under an intestacy (as here) or a previous will has not been given the chance to be heard.

CategoryBest interests - Property and affairs Date

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