M and H v P

Judge: HHJ Hilder

Citation: [2019] EWCOP 42

Summary

In this case the court was considering an application that the court should authorise the making of a statutory will on P’s behalf and the issue arose of whether P’s son, a beneficiary in an earlier will should be joined or notified.

P was a successful businessman and had suffered a stroke. He had a will but the change of circumstances following his stroke, involving the need for substantial care, together with evidence that before his stroke, he was considering a change, prompted those interested in his care to consider that a new will was in P’s best interests.

The initial proposed will adversely affected P’s son’s interests so pursuant to PD9, he was a mandatory respondent. By the time of the hearing, though, the proposed will had been modified so that the requirement was for notification of the proceedings only.

The applicants and the OS, who was appointed as litigation friend on P’s behalf in the usual way, considered that P’s son should not be joined or notified because he had behaved in a threatening and demanding way towards P in the past  and had been sent to prison for breach of a restraining order and they feared that if he was notified, similar behaviour would ensue such that if he was to be notified, the applicants would withdraw the application.

The judge refereed to the guidance given by former Senior Judge Lush in I v D [2016] EWCOP 35 concerning dispensation with service. She held that where dispensation was in relation to notification only as the person’s interests were not materially adversely affected, the balancing exercise was differently weighted to the situation where the person should ordinarily be made a respondent. At paragraph 38, she said this:

Where a person is not likely to be materially or adversely affected by an application, the balancing exercise of procedural fairness in excluding him from the proceedings is differently weighted:

1. Against such exclusion there is still the disadvantage that the court may have to determine the substantive application without all relevant material – X’s account will not be available. There is too the ultimate risk that, after P’s death when the fact of the statutory will inevitably becomes known to X, his exclusion from proceedings will foster a sense of resentment which actually aggravates the risk of the Applicants’ fears being realised.
2. However in favour of such an approach, it is more likely that an application which those with responsibility for managing P’s financial affairs consider to be appropriate will be heard at all; and P’s own representatives in the substantive application support this approach. In so far as X may feel aggrieved at having been deprived of opportunity to contribute to proceedings, the opportunity will have been lost because of his own (unlawful) actions.

In the circumstances, the court acceded to the application that P’s son be not notified of the application.

Comment

The balancing exercise carried out in this case is of particular interest in showing how the factors will differ depend upon whether the relevant individual’s interests will be directly affected by the substantive order under contemplation.

Practice and procedure - Without notice applications, Statutory wills - Statutory wills, Statutory wills 01st October 2019