Dispensing With Service

July 15, 2016

Wills and Probate

Dispensing With Service

Senior Judge Lush heard an appeal in June against an order allowing a statutory Will to be executed without an affected party being notified.

A statutory Will can be applied for when someone has lost capacity to make a Will themselves. The Court will consider the submissions of parties as to what should be in the Will itself, but ultimately will order what provisions are made and who should sign it.

In this case, the person without capacity, herein called ‘P’ was 30 years old and living with his mother. Unfortunately, P was estranged from his father. P has athetoid cerebral palsy as a result of complications at birth. P sued the appropriate health authority and was awarded £3.1m in damages. He is unable to talk, walk, take care of himself and is severely cognitively impaired. However, he does have a normal life expectancy. 

In 2005, having been appointed as his Receiver (a former name for deputies), P’s mother was told that it would be possible for her to apply to the court for a statutory Will. Under the intestacy rules, P’s mother and father would have inherited his entire estate equally.

It was not until 2015 that P’s mother applied for a statutory Will. It was proposed that P’s Will would appoint P’s mother and two maternal half-brothers as executors and trustees. P would give his mother a life interest in his house in London with the property passing to P’s three brothers on his death. P would also give 2% of his estate to charity, and the remaining 98% would be split between P’s mother and brothers in equal shares.

P’s mother also applied to dispense with service on P’s father, on the basis that he was estranged and had no relationship with him. Their last contact was when P was 8 years old. P’s mother thought that his father now lived abroad, but was not sure where.

District Judge Ralph held that unless the Official Solicitor raised an objection within 21 days, then service on P’s father could be dispensed with. The Official Solicitor did raise an objection and the matter was listed for hearing.

District Judge Payne heard the case and decided that indeed service could be dispensed with. He noted that there could be substantial cost in locating P’s father and that if P’s father were to get involved in proceedings, it would cause anxiety to P’s mother who cared for P every day.

Senior Judge Lush decided that there was, in fact, no compelling reason that P’s father should not be served with documents. There was no urgency to this case as P had normal life expectancy, and in any event it had taken P’s mother some 10 years to make an application. Senior Judge Lush was not convinced that in fact any effort had been made to find P’s father and that it had been rather assumed court would dispense with service.

In his judgement, Senior Judge Lush found that other methods could have been used to trace P’s father including searching on social media. He found further that District Judge Payne had given the cost of tracing P’s father undue weight in making his decision given the enormity of disinheriting P’s father.

Citing audi alternam partem (hear the other side), a principle of natural justice, Senior Judge Lush was deterred from making a decision that would compromise the rights of another without giving that person a chance to have their side of the story heard.

Accordingly, the appeal was allowed and P’s mother was directed to try to locate P’s father. No limit was placed on the amount that could be spent in tracing him. Senior Judge Lush felt that if earnest attempts were made to find P’s father, he would not be difficult to find. 

posted by Anna Casey-Woodward | July 15 2016