Court Rules that an Attorney can Replace an Executor who Lacks Capacity.

Case Update:

The High Court has ruled in the case of ‘Whittaker v Hancock’ (2018), that an attorney who was acting under a Property and Financial LPA, could step in to replace a donor who has lost capacity, as a personal representative.

A Mr Parker (the deceased), had executed a Will in 2003, appointing his wife and his niece as executors. He left his entire estate to his wife, and made it very clear that he had intentionally excluded his daughter from benefiting.

After moving in with her daughter in 2013, due to her failing health, Mrs Parker made a Property and Financial Affairs Power of Attorney, appointing her daughter as attorney. This was registered in 2014. By 2015 her health and capacity had further declined, and she had moved into residential care.

When Mr Parker died in March 2016, the niece (Christine Hancock) applied for the probate. However, at this point the daughter he had excluded lodged a Caveat, and claimed she was entitled to a share of the estate under Section 2 Inheritance (Provision for Family & Dependents Act) 1975.

Christine did not wish to become involved in any litigation, and Mrs Parker was unable to act due to her incapacity.

Mrs Parker’s daughter applied to step in as personal representative. The Court was asked to consider whether an attorney could apply to become a substitute personal representative, under Section 50 of The Administration of Justice Act 1985.

The excluded daughter argued that the attorney only had authority to deal with Mrs Parker’s financial affairs, and therefore had no authority to deal with the deceased estate.

The Court rejected this argument, noting that Mrs Parker was the sole beneficiary of the deceased estate, and her interest therefore came within the definition of ‘Property and Financial Affairs’.

The Court ruled that the attorney could apply to act under Section 50 of the Administration of Justice Act 1985, in a representative capacity as Attorney.

The fact that Mrs Parker was the sole beneficiary of the estate, and not only an executor, allowed the Court to reach this decision.

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