NLJ this week: Due process holds the line

Writing in NLJ this week, Catherine Frost of Birketts LLP considers Fairweather v AG, where the Court of Protection reaffirmed that exclusion is exceptional and turns on procedural fairness, not simply the best interests of the person lacking capacity.

Statutory wills can ignite family conflict, especially where a relative is estranged or said to pose risks of harassment, intimidation or harm. But natural justice, Article 6 and Article 8 mean those affected should ordinarily be heard. The court must weigh clear, cogent evidence of risk against the excluded person’s right to participate, rather than accept one-sided allegations too readily.

Frost notes that protective instincts in welfare cases do not automatically carry across. The default remains inclusion: risks must be genuinely exceptional, and tailored safeguards may protect people without denying an affected relative their day in court.