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P, Re [2019] EWCOP 42

Application to execute a statutory will of an individual while not serving that person's son.

Prior to a stroke, P was a businessman who was in the course of finalising his estate. He intended to make specific provision for one of his children, X, but lost his capacity to order his affairs before he had decided on the precise kind of provision. P's partner, M, and his other child, H, made an application for authority to execute a statutory will on behalf of P. They also sought orders to dispense with any requirement to serve X because they feared for their safety, and that of P himself, if X was made aware of these proceedings. They alleged that X had over several years threatened to kill P and everyone else in the family unless he was given sums of money. The Official Solicitor supported M and H's application to dispense with service on X.

Could X be lawfully excluded from these proceedings?

The application required initial analysis under Article 6 and 8 ECHR. If the application was refused, M and H may well withdraw entirely from the legal process given their fears about X's consistently menacing behaviour. If their application was granted, X's right to procedural fairness could also be breached. The Court had to decide which harm was graver, and in so doing, HHJ Hilder resolved the matter by adopting a proportionality test as applied to the Court of Protection Rules 2017.

The mandatory joinder rule did not apply here as it was accepted by all that the application was brought expressly on the basis that X's position would not be adversely affected as compared to the provision P made for him in his last will in 2009 when he had capacity. As such, X did not come within the ambit of paragraph 9 of PD9E which mandated that certain persons must be joined as a respondent and served.

X was, however, covered by paragraph 5 of PD9B as a person who should be presumed to have an interest in being notified of the application. Where a person retains this interest, but is not likely to be materially or adversely affected by an application, a proportionality analysis is required in respect of an application to effectively exclude him from the proceedings. The judge framed the balance as follows;

a. If X is excluded, the Court may effectively have to determine the substantive application without all the relevant material. Exclusion may also actually bring about the evils the applicants fear once X finds out about the statutory will after his father dies.

b. If X is not excluded, the Court must consider whether P's deputies will make any application at all.

Taking all the circumstances into consideration, and having agreed with the parties that X's interests would not be materially or adversely affected by the statutory will before the Court, the judge was satisfied that it was appropriate to dispense with any requirement to notify X of these proceedings or serve him with the application papers.

Case summary by Dr. John-Paul McCarthy, Barrister, Coram Chambers.

Full case: P, Re [2019] EWCOP 42 via BAILII