Case update: Court rules that an attorney can replace an executor who lacks capacity

The High Court have ruled in the case of Whittaker v Hancock [2018] EWHC 3478 (Ch) that an attorney who was acting under a property and financial affairs LPA could step in to replace a donor who had lost capacity as a personal representative.

John Parker (the deceased) had executed a will in 2003 appointing his wife Margaret Parker and his niece Cristine Hancock as his executors. He left his entire estate to his wife and made it very clear that he had intentionally excluded his daughter from benefitting.

After moving in with her daughter in 2013 due to her failing health Mrs Parker made a property and financial affairs appointing her daughter as her 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 Christine applied for 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 s2 Inheritance (Provision for Family and Dependants) 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 s50 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’s estate. The court rejected this argument noting that Mrs Parker was the sole beneficiary of the deceased’s 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 s50 AJA 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.