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Court of Protection

Welcome to our Court of Protection blog featuring updates, guidance and news from the Wrigleys team.

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Isabel McIver

Email: isabel.mciver@wrigleys.co.uk

Telephone: 0114 267 5588

Position: Solicitor

Must someone with a beneficial interest in an estate be served with notice of an application for a Statutory Will which would result in them being disinherited if executed?

Yes, says the Court of Protection in the case of Re D.

Although, guidance is given about when dispensing with service on interested parties may be acceptable.

Background
This case was an appeal against an order which allowed the applicant to dispense with the usual requirement to serve papers, relating to a Statutory Will application, on someone with a material interest in the estate, who is the father of the patient. The father was currently entitled to half the estate on intestacy. He had been estranged from his son and his whereabouts were unknown at the time the application was made. If the proposed Statutory Will was executed then he would have been disinherited.

The appeal was allowed.

Decision
Senior Judge Lush concluded that, in this particular case, where the party affected by the Statutory Will would be materially affected, and there were no compelling reasons to dispense with the requirement of serving the papers, then they should comply with the obligation. The case may have been decided differently if it was an urgent case however, the patient could live for another 45 years or more. In addition, he ruled that more efforts should have been made to locate the father in the first instance.

Finally, Senior Judge Lush commented on the Official Solicitor’s request that the mother, who brought the original application, pay for her own costs. In light of the fact that the application had been successful on two counts, he concluded that it would be unfair to depart from the general rule that proceedings concerning a patient’s affairs be borne by them. He also warned that this might not always be the case and that the Official Solicitor could, in the future, seek a costs order against such applicants.

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

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