BH v JH [2024] WTLR 391

Analysis

The applicant was the deputy and brother of P, who was represented by the Official Solicitor. P had a lifelong learning disability and the presumption of capacity was displaced. The application was for the variation of a statutory will made in 2008 on behalf of P. There was no dispute as to the terms of the proposed variation or that it was in the best interests of P.

The 2008 statutory will provided for the creation of a discretionary trust for a period of two years less one day, of £1m plus P’s home (worth £600,000) and chattels, in favour of four categories of beneficiaries including carers, and for a residuary gift to be held on charitable trusts. The trustees had the power to benefit any charity but there was particular reference in the schedule to the current will to charities for the relief of those suffering from mental impairment.

In outline the variations increased the discretionary trust legacy to £2m. The residuary estate would be amended to include a specific reference to charities for the relief of those suffering from any form of physical disability or disease in addition to mental impairment.

The issue for the court was whether the beneficiaries should be served with the application to vary the statutory will under para 9 of Practice Direction 9E of the Court of Protection Rules 2017. The dispute was in relation to two categories of proposed beneficiaries: P’s carers who benefitted under a discretionary trust, and unspecified charities who were to benefit from a residuary gift.

The Official Solicitor’s position was that the changes agreed meant that the charities would be adversely affected, so that the Attorney General should be served so that representations could be made as appropriate in relation to those charitable interests. The deputy argued that the charities were not identified in the will and there may be nothing left in the estate by way of residue to satisfy the charitable bequest as the estate was diminishing: P’s care costs exceeded the income being generated and were being met from capital.

A common position had been reached in relation to the carers: there was a compelling reason to dispense with notification because, inter alia, it was in P’s best interests not to take any steps likely to disrupt his care.

Held:

1. (1) There was no cogent rationale for construing ‘materially’ in para 9 as being negative in nature, when ‘adversely’, which was a negative concept, was used as an alternative basis in the same paragraph.
2. (2) It was accepted that the proposals regarding the charitable legacy were likely to adversely affect the charities even if they did not fall to be identified until P had died. The applicant did not dispute that any residuary beneficiary was likely to be adversely affected. PD 9E was applicable to charities and not just individuals.
3. (3) The court’s discretion to dispense with service could only be exercised in exceptional circumstances where there was a compelling reason to do so. That was not satisfied here:
   1. (i) There was no personal issue of trust relating to the deputy in the case, or if there was, it did not provide a compelling reason to depart from the mandatory notification requirement of para 9 PD 9E which focuses on procedural fairness.
   2. (ii) There was no suggestion that this was an urgent case.
   3. (iii) As far as the carers were concerned the judge accepted that there were compelling reasons for dispensing with service. The variations were to their advantage and, moreover, it was in P’s best interests that his care was not disrupted or his carers unsettled by the prospect of an increased inheritance
   4. (iv) There were no exceptional circumstances for dispensing with notification of the Attorney General.
4. (4) The requirements of procedural fairness, whether underpinned by the European Convention on Human Rights or the principles of natural justice, must be given high regard. Once the statutory will was approved the Court of Protection would no longer have jurisdiction. Notification at this stage was not premature.
5. (5) The lack of identification of specific charities did not provide a compelling reason to avoid notification and an opportunity for representation on the diminution of provision to the charities. The Attorney General might or might not make representations but it must be given the opportunity to do so.
6. (6) While it was appropriate to consider the impact on the estate of costs, notification was not disproportionate. The balance was in favour of notification due to the size of the estate and the potential significant adverse impact on the charities.

JUDGMENT DEPUTY DISTRICT JUDGE WEERERATNE: Introduction [1] This hearing arose in the context of an application dated 6 August 2022 for a variation to a statutory will made in 2008 on behalf of P (‘current statutory will’). The application was made by his deputy, who is also his brother. P is represented by the Official …

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