Attorney of an executrix who has lost mental capacity can administer an estate in her place.
In the recent case of Whittaker v Hancock, the High Court held that where an executrix of a will had lost mental capacity, her attorney under a property and financial affairs lasting power of attorney (‘LPA’) could be appointed as a substitute personal representative to administer the estate in her place.
2003 – John Parker makes a will appointing his wife Margaret and his niece Christine as his executrices and leaving the whole of his estate to his wife. His daughter by his first marriage is explicitly excluded as a beneficiary.
2013 – Mrs Parker is diagnosed with the beginnings of dementia and grants a property and financial affairs LPA to her own daughter Janet Whittaker, which is registered.
March 2016 – Mr Parker dies and Mrs Parker has insufficient mental capacity to act as an executrix of his will. The niece Christine applies for Probate on her own.
The estranged daughter claims that she has a right to a share of her father’s estate and that the 2003 will was invalid for a number of reasons. Christine, not wanting to be involved in litigation, indicates she wishes to step down as an executrix. Janet applies to take over as a substitute executrix under s50 Administration of Justice Act 1985.
The issue before the Court was whether Janet’s duty as her mother’s attorney to look after her property and financial affairs extended to administering Mr Parker’s estate. The judge held that Mrs Parker’s interest in her husband’s estate did come within the definition of property and financial affairs governed by Mrs Parker’s LPA. The judge said it was also relevant that Mrs Parker was the sole beneficiary of her husband’s will, so was in a different position to where there were a number of beneficiaries.
Couples often appoint each other as their executor and sole beneficiary. This decision provides a helpful and pragmatic solution to a difficult situation and gives another reason why it is advantageous to have an LPA in place.
Rosemary Milns, Senior Associate
For more information, please contact the partner having responsibility for your affairs or any partner in the Private Client Department here.