Re D [2016] EWCOP 35

​Senior Judge Lush heard the appeal against an order authorising the applicant to execute a statutory will without the obligation to serve papers on someone who is entitled to a half share of the estate.

Background
D, aged 30, suffers from athetoid cerebral palsy as a result of complications when he was born. He communicates non-verbally and is wheelchair dependent, relying on others for all personal care. He sued the health authority for clinical negligence and was awarded £3.1 million in damages. D lives with his mother who was appointed as his receiver in 2003 and as deputy for property and affairs in 2008.

It was confirmed in 2014 that D lacks the capacity to make a will. He is therefore intestate and on his death his estate would be divided equally between his mother and his father, with whom he has had no contact for 22 years. This means that upon D's death his mother, but not his father, would have an inheritance claim against the estate following the decision in Re B (Deceased) [2000] Ch 662, [2000] 2 WLR 929, [2000] 1 All ER 665.

On 3 July 2015, D's mother applied for an order authorising her to execute a statutory will which would appoint her and D's brothers as his executors and trustees, give D's mother a life interest in his house which would pass to the brothers upon her death, donate 2% of his residuary estate to charity, and split the remaining 98% between the executors and trustees in equal shares.

On 7 January 2016, District Judge Payne ordered that service upon D's father could be dispensed with under rule 38 of the Court of Protection Rules 2007. This was deemed appropriate given that D had no contact with his father. The Official Solicitor was granted leave to appeal the order.

Law and guidance
The judgment provides a useful recap of the rules relating to service and dispensing with service. Practitioners will be aware of the rules and guidance set out in Part 9 of the Court of Protections Rules 2007. In particular the guidance relating to statutory wills as set out in paragraph 9 of PD9F says that:

“The applicant must name as a respondent:

(a)    any beneficiary under an existing will or codicil who is likely to be materially or adversely affected by the application;

(b)    any beneficiary under a proposed will or codicil who is likely to be materially or adversely affected by the application; and

(c)    any prospective beneficiary under P’s intestacy where P has no existing will.”

In addition to the court's general case management powers, rule 38 specifically covers the court's power to dispense with service and sets out that:

(1)    The court may dispense with any requirement to serve a document.

(2)    An application for an order to dispense with service may be made without notice.

In Re HMF [1976] Ch 33 it was decided that charities could be joined as parties to an application for a statutory will where the charities stood to benefit.

The case of Re Davey [1981] WLR 164 confirmed that the court "has a discretion as to what persons are to be made respondent to or given notice of the application" to execute a statutory will.

In 1987 the court heard the case of B (Court of Protection: Notice of Proceedings) [1987] 1 WLR 552 where B's receiver argued that the nephews should not be notified of his application to execute the statutory will for fear that a family dispute would ensue. The application was, perhaps understandably, refused. Mr Justice Millett set out that before exercising judicial discretion the court must be satisfied that:

(a)    All relevant material is before the court and the arguments can properly be directed to the question to be determined, and

(b)    All persons materially and adversely affected should be given every opportunity of putting their cases forward.

Mr Justice Millett accepted that there are cases where it would be right to exclude a party from proceedings despite any interest or adverse effect, but that this would only happen in the most exceptional circumstances.

District Judge Batten decided the first case following the implementation of the Mental Capacity Act 2005 in Re AB [2014] COPLR 381. AB was awarded damages for a personal injury and her mother applied to execute a statutory will which would remove AB's absent father from entitlement. Clearly the circumstances of AB's case are very similar to D's circumstances. The difference however was that there were allegations of violence against the absent father and AB had expressed a wish that her father should not benefit from her estate. In this case it was decided that despite the serious allegations service should not be dispensed with and AB was not an exceptional case. DJ Batten highlighted the following key points:

(a) No investigation required as to what is in P's best interests;

(b) Permission to dispense with service should only be given in exceptional circumstances where there are compelling reasons for doing so. If there are no compelling reasons then interests of justice will not be served and the court will not be seen to be acting fairly towards all parties.
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(c) Relevant considerations for 'compelling reasons' will include:

(i) the respondent’s conduct, particularly where there is independent and reliable corroborative evidence of his past behaviour;

(ii) the value of the financial benefit to the respondent both in absolute and relative terms; and

(iii) whether the cost to P’s estate or the parties, or the delay caused in concluding the application is disproportionate relative to the value to the respondent of the benefit he will lose by the proposed final order.

Decision
Senior Judge Lush found that there was no urgency in this case, it was not exceptional and there was no compelling reason why service on D's father should be dispensed with. The judgment includes comments that the Judge was unimpressed with efforts to locate the father and that undue prominence had been allowed to the cost of the search.

This case was distinguished from Re AB as there was no suggestion of physical violence towards D. Furthermore, D's paternal family became aware of the damages he was awarded due to publication in the press. The judgment highlighted that it is therefore likely the paternal family were living locally and therefore papers should be served not least because D's father may entertain a hope that he may someday inherit part of the award. 

Commentary
The submissions by the Official Solicitor are particularly helpful in this case as he provided useful commentary and guidance. The salient points are expanded from the case of Re AB. I would therefore urge practitioners to read the judgment in full where they have a case dealing with dispensation of service when executing a statutory will. 

Senior Judge Lush acknowledged that applications to dispense with service are often made because "it would be more convenient for the applicant to avoid any potential confrontation and less painful than the re-opening of old wounds". Nevertheless this should not be a bar to fairness in proceedings and to deny someone their Article 6 rights under the ECHR based on discomfort of the parties alone cannot be right.

Read the full text of the judgment on Bailii