It’s always interesting to come across something that is new to you. I never did any Court of Protection work when I was practising. However, I have read many Court of Protection cases since I stopped practising, and have thus seen much of the work that the court does. I cannot, however, recall coming across a case involving a statutory will, which is therefore something new to me. I knew of statutory wills, of course, but have not seen a statutory will case ‘in action’, and it is interesting to see how things work in practice.
The recent Court of Protection case Re D involved a statutory will. The facts of the case are rather sad. It concerned a thirty year old man, Duaine, who has cerebral palsy, as a result of complications at the time of his birth. He sued the relevant health authority for clinical negligence and was awarded damages of £3,100,000. Duiane cannot talk and is completely dependent on others for feeding, bathing and all personal care matters, although he has a normal life expectancy. He lives with his mother Irma, who was appointed as his receiver in 2003 and as his deputy for property and affairs in 2008.
Duaine’s father, Keith, probably lives in Jamaica, and has apparently had no contact with him for over twenty years. Irma says that Keith has never taken any responsibility for Duaine, has never provided financially for him, or even sent him any cards or birthday presents. She says that Keith had some contact with Duaine when he was younger in that he saw him when he came to the house to see Duaine’s older brother Deon, but he would never take him out or show any interest in him whatsoever.
Duiane also has two younger brothers of the maternal half-blood, and siblings of the paternal half-blood, but the court had no information regarding their identities and whereabouts.
Duaine is currently intestate and therefore on his death his estate would be divided equally between his mother and father. He lacks the capacity to make a will and Irma has applied to the court for an order authorising her to execute a statutory will, in which it is proposed that Duaine would:
(a) Appoint her and his brother Deon and his two maternal half-brothers to be his executors and trustees;
(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 one per cent of his residuary estate to Cancer Research UK, and another one per cent to the Guy’s and St Thomas’ Charity; and
(d) Give the remaining 98 per cent of residue to her and his brothers in equal shares.
Now, the rules relating to statutory will applications require that anyone who is likely to be materially and adversely affected by the application must be named as a respondent to the application, and served with the papers. People who may be materially affected include beneficiaries under any existing will and any prospective beneficiary under an intestacy where there is no existing will. The applicant can ask the court to dispense with the requirement to serve the papers on a respondent but, as we shall see, the court will only do this in exceptional cases, where there are compelling reasons to do so.
Irma requested the court to dispense with service of the papers on Keith. Her reasons for this included Keith’s lack of interest in Duaine, the fact that she didn’t know Keith’s whereabouts (and the cost of finding him), and the anxiety that she would suffer as a result of serving Keith. In any event, it was highly unlikely that Keith would benefit under the statutory will (this would be a matter for the court to decide).
Initially the court agreed with Irma and made an order dispensing with service of the papers on Keith. The Official Solicitor appealed against the order, and the case went before Senior Judge Lush.
Senior Judge Lush allowed the appeal. Irma’s reasons for dispensing with service were not exceptional. It seems that cases of this type where a family member, usually the father, no longer has contact are quite common, and applications to dispense with service in such cases are usually dismissed. The point being that the interests of justice required the court to act fairly towards all parties. For example, Keith might have an alternative version of events to Irma. The cost of finding Keith would be small in the context of the size of the estate, and any anxiety that Irma may suffer would be no different from many other cases.
The case ended with a warning for people in Irma’s position. The Official Solicitor proposed that Irma should pay her own costs of the application. Senior Judge Lush thought that this would be unfair, particularly as Irma had initially been successful. However, he said, the Official Solicitor’s “bullish proposal that Irma should pay her own costs may be a portent that in future the Official Solicitor will seek a costs order against applicants who, in unexceptional circumstances and for no compelling reason, apply to dispense with service on someone who is materially and adversely affected by an application for the execution of a statutory will.”
The full report of Re D can be found here.