P, Re [2019] EWCOP 42 (01 October 2019)

This case concerned an application for authority to execute a statutory will on behalf of P and for an order to dispense with authority to serve P’s son (X). The application was brought jointly by M & H, H being P‘s other child and M being P’s long-term partner.

Evidence had been filed that P lacked capacity to execute a will and the Official Solicitor acted as his litigation friend and supported the application to dispense with normal service requirements.

The adult years of X had been plagued by alcohol and drug addiction and his behaviour towards his family had been extreme, with numerous acts of violence against family members.

P had suffered a stroke several years ago but before this he had been an enterprising businessman and was known to have made at least 5 wills, and a draft will found on his computer in his ‘to do’ folder suggested that he may have been considering  making provision for an outright interest to X instead of provision of him being the beneficiary of 2 trusts as in the last will made in 2009. However, nothing was concluded prior to P’s stroke but the Applicants believed it was inconceivable that P would not have imposed a trust structure when he finalised the draft.

HHJ Hilder considered all the relevant rules and practice directions as well as, inter alia, the decision by Senior Judge Lush in I v D [2016] EWCOP 35.

By the closing submissions, because of a change in the terms of the statutory will that was being proposed, the Applicants’ position was that their application would not materially, or adversely, affect X. They sought orders to ensure that documents relating to these proceedings were ‘sealed’ against disclosure to X, and that any further hearings were conducted in private.

The Official Solicitor regarded the account of the Applicants as “stark and startling”, therefore raising a realistic prospect that, if X was served or notified, his behaviour would be violent and/or threatening.

When the Applicants’ proposals were altered to preserve X’s position under the 2009 will, the court was informed that this reflected the likely position of the Official Solicitor if the substantive application had come to be considered after dispensation of any requirement to serve X.

HHJ concluded that the application as had now been formulated did not materially or adversely affect X, therefore there was no requirement to serve him with the application. She was also satisfied that it was appropriate to dispense with any requirement to notify X of the application and that any future hearings in this matter would be conducted in private (subject to further order).

The full judgement can be read here

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