BH vs JH

This case concerned the procedural requirements for varying a statutory will in the Court of Protection, focusing on whether beneficiaries need to be notified.

TLDR:

• BH applied to vary the statutory will of JH, who lacks mental capacity.
• The court had to determine if beneficiaries should be notified of the changes.
• The court ruled that notification is mandatory unless exceptional circumstances justify dispensing with it.

The appellant, BH, sought to vary the statutory will of his brother, JH, who has a lifelong learning disability and lacks mental capacity. The statutory will, originally made in 2008, required amendments due to changes in JH's financial and care circumstances.

The primary issue for the court was whether the beneficiaries, including JH's carers and unspecified charities, needed to be notified of the proposed changes to the will. BH argued that notification should be dispensed with on pragmatic grounds, while the Official Solicitor (OS), representing JH, insisted on adherence to procedural fairness.

The court examined whether the beneficiaries would be materially or adversely affected by the proposed changes. It was found that the carers would benefit from an increased legacy, while the residuary estate for charities would be reduced, potentially to nothing.

The court ruled that the carers, who would benefit from the changes, did not need to be notified to avoid disrupting JH's care. However, the court decided that the Attorney-General (A-G) must be notified to represent the interests of the unspecified charities, emphasizing procedural fairness.

The court's decision was based on the principles of natural justice and the need to ensure that all potentially affected parties had the opportunity to be heard. The court rejected the argument that the lack of identified charities justified dispensing with notification.

The judgment highlighted the importance of following mandatory procedural requirements and ensuring that the interests of all potential beneficiaries are considered, even in cases involving statutory wills.

The court directed that the parties file an order for notification to the A-G and scheduled a further hearing for additional directions.

Legal representatives: Ms. Elissa Dacosta-Waldman for the appellant, Ms. Georgia Bedworth for the respondent.

Judicial Panel: Deputy District Judge Weereratne

Case Citation Reference: [2024] EWCOP 12