P, before his stroke, was an enterprising businessman who had made a will ten years ago by which he made provision through two trusts for his son, X. By a letter of wishes he indicated that a trust structure had been provided because of concerns that outright inheritance would be contrary to his interests. P was considering making a new will to reflect the changed position of his companies when the stroke supervened, as a result of which he lost the capacity to execute a will. Consequently, M and H made an application for authority to execute a statutory will on behalf of P and, within that application, they sought (with the support of the Official Solicitor) orders to dispense with the normal service requirements on X. The court made an order providing for the hearing to be conducted in private, being satisfied that there was good reason for not making an order pursuant to the transparency provisions of the Court of Protection Rules 2017.
X’s adult years had been plagued by alcohol and drug addiction, and his behaviour to his family had been extreme – frequently making demands for money, accompanied by explicit threats to commit acts of violence. The applicants contended that the application was necessary and in the best interests of P because of the significant change in his financial and personal circumstances since he made his will. At the outset of the hearing they accepted that X would be materially and adversely affected by the terms of the proposed statutory will and so, in normal circumstances, he should be a respondent to the proceedings. Such was their fear of X’s behaviour that they stated that, if he must be informed of the proceedings, they would withdraw the application. However, by the time of closing submissions, because of a change in the terms of the statutory will being proposed, the applicants’ position was that their application would not materially or adversely affect X.
Held (granting the application):
The court had to give high regard to the need for procedural fairness. Even with ‘credible’ and partially corroborated accounts of extreme behaviour on the part of X, an application to exclude him completely from proceedings which are brought on a basis that will materially affect him challenges procedural instincts. The element of choice was relevant if it came down to balancing the unfairness to X of being excluded from proceedings against the unfairness to the applicants in choosing not to pursue the proceedings, and to P in circumstances where he had already made a will. However, as a result of the change to the terms of the application, the court was not required to determine that balancing exercise on this occasion. On the basis that X’s position would not be materially or adversely affected, he was not within those categories of person who must be joined as a respondent. Still, he was within those categories of persons who should be presumed to have an interest in being notified of the application. That presumption could be displaced and a balancing exercise of procedural fairness in excluding him from the proceedings was differently weighted where he was not likely to be materially or adversely affected. Against such exclusion there was the disadvantage that the court may have to determine the substantive application without all relevant material; in favour of such exclusion it was more likely that the application which those who were responsible for managing P’s financial affairs considered to be appropriate would be heard.
Taking all the circumstances of the matter into consideration, and firmly on the basis that X’s interests would not be materially or adversely affected by the substantive application, it was appropriate to dispense with any requirement to notify him of the proceedings. Moreover, there was good reason for not making the ‘ordinary’ order that future hearings be conducted in public. However, the public interest in open justice could be met by an order permitting publication of this judgment, and future consideration for such an order in relation to any judgment on the substantive application.JUDGMENT HHJ HILDER: The numbers in square brackets and bold typeface refer to pages of the hearing bundle. I. The Issue  M and H have jointly made an application for authority to execute a statutory will on behalf of P. Within that application they seek orders to dispense with any requirement to serve X, …