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England and Wales court rules attorney can administer estate where executrix has lost capacity

Monday, 7 January, 2019

A personal representative who lost mental capacity can be replaced by her attorney for the purpose of administering the deceased's estate, the England and Wales High Court has ruled.

The deceased, John Parker, executed a will in 2003, appointing his wife Margaret and his niece, Christine Hancock, as joint executors. He also named Margaret as sole beneficiary of his estate, and added a note explicitly excluding his daughter by his first marriage as a beneficiary.

In 2013, Margaret Parker moved in with her own daughter Janet Whittaker, who was better able to care for her. She had not yet lost mental capacity, and was able at the same time to grant her daughter a lasting power of attorney (LPA). This LPA was registered in January 2014, and in 2015, Mrs Parker's advancing dementia forced her to move into full time residential care.

John Parker died in March 2016, and his niece applied for probate. The estate for probate purposes is worth about GBP60,000, the rest having passed to Margaret Parker by survivorship.

Parker's estranged daughter then intervened, claiming a right to a share of the estate and entering a caveat on the probate application. Christine Hancock did not wish to be involved in litigation, so Mrs Parker's attorney Janet Whittaker applied to take over as the second executrix under s50 of the Administration of Justice Act 1985 (the Act), so that she could herself apply to have the caveat removed.

The question before the court was whether Janet Whittaker's undoubted duty as attorney to look after Mrs Parker's property and financial affairs could also extend to administering Mr Parker's estate. Mr Parker's estranged daughter argued that an attorney had power to deal with Mrs Parker's own property and financial affairs only, not the deceased's financial affairs.

However, the judge rejected this argument, holding that Mrs Parker's interest in her husband's estate came within the definition of property and financial affairs, and were thus within her powers as appointed attorney. The LPA she had executed was written in wide terms that enabled her attorney to make decisions about her property and financial affairs without any conditions or restrictions. The attorney could therefore bring an application under s50 of the Act to act in a representative capacity as attorney. It was material to this that Mrs Parker was not just executrix but also sole beneficiary.

'Given that [Mrs Parker] is the sole beneficiary of that estate...I consider that in order for the deceased's estate to be administered it is necessary to substitute [her attorney] as personal representative in place of [Mrs Parker]', said Master Shuman in his judgment (Whittaker v Hancock, 2018 EWHC 3478 Ch).