Attorney Replaces Executrix Lacking Capacity As Personal Representative

A tragic case concerning a warring family has ruled that the attorney of an executrix that has lost capacity can become the administer of her late husband’s estate.

John Parker, the deceased in the case, passed away in 2016. During a 2003 Will, he explicitly requested that his daughter, from his first marriage, was excluded from the Will and would not benefit from his estate.

Instead, he appointed his wife, Margaret Parker, and his niece, Christine Hancock, as joint executors of the estate; further naming Margaret as his sole beneficiary.

Before John Parker’s death, due to declining health, Margaret Parker moved in with her daughter, Janet Whittaker, in 2013. At this time, whilst she had testamentary capacity, she appointed her daughter as Lasting Power of Attorney (LPA).

Following John Parker’s passing in 2016, his niece, Christine Hancock, applied for probate for John’s remaining estate worth around £60,000.

On 20th July, 2016, John Parker’s daughter applied a caveat to be entered, preventing the grant of probate and delaying the administration of the estate. On 22 July, 2016, John Parker’s daughter sent a letter to Margeret’s solicitor claiming that the deceased had an obligation to provide for her under section 2 of the Inheritance (Provision for Family and Dependants) Act 1975 (“the 1975 Act”).

During this time, and as Margeret lost capacity, her daughter made the application to take over the administration of the estate as well as her mother’s financial affairs. John Parker’s daughter’s legal representation claimed that the LPA’s powers should not extend to the financial estate of John Parker that should be treated as a separate issue.

However, the judge disagreed, stating that the financial estate of John Parker was inextricably linked to Margaret Parker. He ordered the removal of the caveat and instructed John’s daughter to make a new application for costs that would be considered at another time.

Master Shuman, presiding Judge in the case, stated: “I do not construe the LPA restrictively as Mr Reed contends. It is a general LPA in respect of property and financial affairs that is in wide terms enabling the claimant, as attorney, to make decisions about the second defendant’s property and financial affairs. There are no conditions or restrictions specified in the instrument. The scope of the claimant’s authority is therefore only subject to the provisions of the Mental Capacity Act 2005, specifically the principles under section 1 and acting in best interests under section 4, and any excluded decisions under the act. Counsel did not refer me to any that arise here or indeed to provisions of any other enactment that would limit the claimant’s authority to act. It is also relevant that the second defendant is the sole beneficiary under the 2003 will. She is in a different position to a case where there are a number of beneficiaries.

“I accept Mr Devereux-Cooke’s analysis that the claimant has standing to bring this claim under section 50. If I am wrong in my analysis I consider that the position could be remedied by adding the second defendant as a claimant and appointing the current claimant as her litigation friend. I also accept Mr Devereux-Cooke’s analysis of rules 31 and 35 of the Non-Contentious Probate Rules 1987 and would have been prepared to treat the claim as including this as an alternative legal route, had it been necessary.

“The administration of the deceased’s estate now needs to proceed. The third defendant’s stance has caused an unjustified and unnecessary delay of over two years. This is unacceptable and particularly so when the second defendant is the sole beneficiary under the 2003 will, is elderly and has undoubted financial needs to assist with her care costs. It is important now having directed the third defendant to issue a claim under the 1975 Act that that claim is progressed promptly.

“The third defendant, save for the technical ground that I have referred to above and rejected, has set out no substantive grounds for opposing the substitution of the claimant as personal representative. The first defendant does not oppose that appointment. I can infer from that there is no reason to believe that the claimant and the first defendant cannot work together to administer the deceased’s estate. Given that the second defendant is the sole beneficiary of that estate, unless and until an order is made under section 2 of the 1975 Act in favour of the third defendant, and historically the first defendant has considered herself impotent to act without financial resources and in the face of asserted but not issued claims by the third defendant I consider that in order for the deceased’s estate to be administered it is necessary to substitute the claimant as personal representative in place of the second defendant.”

Are you aware of similar contentious probate issues?

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