We were instructed by the cohabiting partner of S. S was in the terminal stages of a brain tumour. It came to the attention of our client that S had recently remarried his ex-wife in circumstances in which it appeared unlikely (owing to his prognosis) that he had capacity to do so.

It also transpired that S had executed a will in contemplation of that marriage, again in circumstances where capacity was in doubt. As a result of the marriage, an earlier will making provision for our client and S' children (of his ex-wife) was revoked. At the time of being instructed, S had lost capacity to provide instructions and the Official Solicitor was appointed. 

An application for a statutory will and emergency holding will ensued which involved consideration of complex questions as to what was in S' best interests. In particular, the importance to S of being remembered for having properly provided for his partner of 6 years, and not leaving a legacy of expensive litigation after his death, had to be balanced with the requirement for procedural fairness to which the Court must have regard pursuant to Article 6 of the European Convention on Human Rights.

In the event, the Court of Protection declined to order a holding will at short notice due to the judge's view that the factual matrix was too complex for all parties to have prepared their respective cases in time. The case was adjourned in order that the parties could prepare for a hearing of the substantive statutory will application. Sadly, however, S died before the final hearing of the application.