D, Re [2016] EWCOP 35 (01 July 2016)

Posted on Friday, April 28th, 2017

This was an appeal against an order made on 7 January 2016 which allowed the applicant an order authorising her to execute a statutory will and to be released from the obligation to serve the papers on someone who was currently entitled to a half share of the estate on intestacy and would be disinherited if the proposed statutory will was executed.

The background

D was 30 and lived in London with his mother, I, who is 54. His father, K, was 53, probably lived in Jamaica, and had no contact with D for over twenty years. D had an older brother of the whole blood, D2, who was 36, and two other younger brothers of the maternal half-blood, who were 15 and 13. He also had siblings of the paternal half-blood, but the court had no information regarding their identities and whereabouts.

D had athetoid cerebral palsy as a result of complications at the time of his birth for which he successfully sued the relevant health authority for clinical negligence and was awarded damages of £3.1 million. In 2003 his mother was appointed as his receiver and in 2008 she was appointed as his deputy for property and affairs.

D was currently intestate and on his death his estate would be divided equally between his mother and father.

In light of the Court of Appeal’s decision in Re B (Deceased) [2000] Ch 662, [2000] 2 WLR 929, [2000] 1 All ER 665, if D was to die intestate, his mother would have a claim against his estate under the Inheritance (Provision for Family and Dependants) Act 1975, but his father would not.

In an assessment of capacity (COP3) completed on 29 October 2014, D’s GP confirmed that he lacked the capacity to make a will.

I applied to the court for an order authorising her to execute a statutory will, in which it was proposed that D would: (a) appoint her and his brother D2 and his two maternal half-brothers to be his executors and trustees (his half-brothers’ appointment was conditional upon their attaining the age of 18); (b) give a life interest in his house in London to her, and on her death the property would pass to his three brothers in equal shares; (c) give 1% of his residuary estate to Cancer Research UK, and another 1% to the Guy’s and St Thomas’ Charity; and (d) give the remaining 98% of residue to her and his brothers in equal shares.

In an Order dated 7 January 2016 the District Judge ordered inter alia that service on the father could be dispensed with and the Official Solicitor, Litigation Friend for the Protected Party was given leave to appeal. The Official Solicitor did appeal and sought to set aside the order of District Judge Payne and direct the applicant to take steps to locate and serve K.

In a decision dated 1 July 2016 Senior Judge Lush allowed the appeal, set aside the Order of 7 January 2016 and directed I to take steps to locate K. I’s costs were to be assessed on the standard basis and paid from D’s estate.

The full judgment can be read here.

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