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High Court rules attorney can substitute for executor

7th February 2019

Losing an executor of a Will or an attorney or deputy who manages someone’s affairs can often bring an added level of anguish to an already stressful situation. However, the High Court has hopefully provided an answer to this problem.

A recent case involving family members at odds with each other has ruled that when an executor loses mental capacity, their attorney can replace them to administer the executor’s late husband’s estate.

John Parker, the husband in question executed a will in 2003 in which he appointed his wife Margaret and niece Christine Hancock, as joint executors.

The will also named Margaret as sole beneficiary of his estate, whilst specifically excluding as a beneficiary, his daughter from his first marriage.

In 2013, Margaret Parker moved to live with her own daughter Janet Whittaker, who would care for her as her dementia worsened. At this time, she had not yet lost mental capacity and was able to grant her daughter a lasting power of attorney (LPA), which was registered in January 2014.

A year later Mrs Parker moved into full-time residential care, suffering from triple dementia, vascular, Alzheimer’s and Lewy Bodies and has very little comprehension of the world around her.

John Parker died in March 2016 and his niece, Christine Hancock applied for probate, with the estate worth about £60,000 – the rest had passed to his wife.

Parker’s estranged daughter intervened in July of that year and claimed a right to a share of the estate, entering a caveat on the probate application preventing the grant of probate and delaying the administration of the estate.

Justice Administered

Christine Hancock wanted to avoid litigation and allowed Mrs Parker’s attorney to apply to take over as the second executor, under s50 of the Administration of Justice Act 1985 (the Act), so she could apply to remove the caveat.

The question before the court was whether the attorney’s undoubted duty to manage Mrs Parker’s property and financial affairs, could also extend to administering her deceased husband’s estate.

Mr Parker’s estranged daughter’s legal representatives argued that an attorney had power to deal only with Mrs Parker’s affairs, claiming the LPA’s powers should not extend to the estate of her deceased husband, which should be treated as a separate matter.

Argument rejected

The judge, Master Karen Shuman rejected this argument. She ruled that Mrs Parker’s interest in her husband’s estate came within the definition of property and financial affairs as determined in the LPA and were thus within the powers of the appointed attorney.

The LPA was written in broad terms that enabled the attorney to make decisions about Mrs Parker’s property and financial affairs without any conditions or restrictions.

The attorney could therefore bring an application under s50 of the Act that allowed her to be substituted in place of Mrs Parker as personal representative.

The judge stated that the administration of the deceased’s estate should proceed quickly as the claim had caused an unjustified and unnecessary delay of more than two years – unacceptable when Mrs Parker is the sole beneficiary, is elderly and will need help with her care costs.

Sound familiar

If you are unsure about the position with an executor, a deputy or an attorney, please get in touch so we can advise the best next steps. Contact Adam Penn on 01543 466660 or email him at apenn@ansonssolicitors.com