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Written on 14th July 2016 by Ruth Meyer

A Statutory Will is a will made on behalf of a person who does not have the required mental capacity to make a will and which is authorised by the court.

Statutory Wills can be fraught with difficulty. Not only are vast amounts of information required to put together an application but they can cause added difficulties in respect to notification to families.

What we do

At Boyes Turner we act for a considerable number of children who have received compensation for a birth injury. The compensation can be substantial. Once the child turns 18 we can put an application into the Court for a Statutory Will. Without such a will their assets will be distributed automaticallyunder the Intestacy Rules. Under these rules, the estate would be distributed equally to the parents assuming the young adult has not married or has children. The question really then revolves around whether equal distribution to the parents is fair.

We recently submitted an application in which it was decided to request a will that excluded the father of the young adult as he had almost nothing to do with his son, Anthony, since his diagnosis. The mother not only felt it “just” that the father was excluded but also wanted to ensure that he was not told about the application for a Statutory Will for fear of domestic violence. The mother was concerned that the father would find where they lived but just as importantly she felt that it was unfair that he should receive any money from Anthony, especially as he had not sent him birthday or christmas presents and had not seen him since he was 3 years old. The value of the assets was substantial – just over £2M.

The Court’s approach

The general approach by the courts is that all “interested parties” should be notified of the application unless there are “exceptional circumstances”. Interested parties will always include both parents. So, would the threat of domestic violence be treated as “an exceptional circumstance”? Apparently not!  We were advised by the Official Solicitor to serve notice but then remove the information regarding the addresses of the other parties. The mother was still unhappy but we advised her that providing notice and applying to exclude the father from a share in the estate so that he did not receive anything were two separate things. We were still going to apply to have him removed as a beneficiary – but this was even more of a reason for him to have notice of the application.  He had a right, if he so wished, to be heard fairly and object.

The outcome of Anthony’s case was a successful one. We served notice and applied to the court so that the father would not benefit under his son’s Will. However, this case shows the various layers of issues that are faced and how high tension runs in fragmented families especially where there is a lot financially at stake.

Recent case law

The recent case of I v D [2016] EW COP35 before Senior Judge Lush is very similar to many of the cases we deal with. In this case there was a fragmented family, as there are with many families with a brain injured child and a substantial award. The father who could not be located was entitled to a half share of his son’s £3.1 million estate. An application was made by the son’s mother and Deputy for a Statutory Will and for an application to dispense with the service of the application on the grounds that the father had had no contact with the son for many years and his whereabouts were unknown. If notice was dispensed with the father may never have known about his potential entitlement.

The senior judge refused the application to dispense with service as the father had a right to be heard and not enough effort had been made to locate him. The senior judge also said that this was not an exceptional case in which notice of service could be dispensed with.

Senior Judge Lush was unimpressed with the efforts to locate the father and even wondered if any attempt was made to find him at all. Interestingly the senior judge also said that more often than not these applications to dispense with service are made because it would be more convenient for the application to avoid any potential confrontation and less painful than reopening old wounds.

The point is, unless it is a very exceptional case, the father has a right to be told and if necessary a right to be heard. Each application will be decided upon its merits but any discomfort within families will not override the right of a party to be told about the application. The courts will be fair and just in their approach and if need be, as in Anthony’s case, all addresses can be removed to protect the parties from potential harm.