News

Whittaker v Hancock

  • March 12, 2019
  • By Rosemary Milns, Senior Associate

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.

Background

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.

Related News

May 11, 2022
Vanina Wittenburg examines the impact of the pandemic for probates and discusses hope for the future in Taxation
Apr 12, 2022
Vanina Wittenburg examines how the pandemic has affected the probate system and hope for the future in the FTAdviser
Mar 31, 2022
Vanina Wittenburg discusses the importance of wills for young adults in Today’s Wills & Probate
Mar 21, 2022
Vanina Wittenburg comments on the impact of the BVD cutting the funding of will searches, in This is Money
Feb 02, 2022
Vanina Wittenburg is a full member of the Society of Trust and Estate Practitioners (STEP)
Jan 25, 2022
Flora Nelmes discusses the steps involved in insuring an unoccupied property following a death in Lawyer Monthly
Jan 17, 2022
Probate Application Fee Increase
Dec 13, 2021
Flora Nelmes says that clients should review their existing wills and consider IHT opportunities with the RNRB to remain fixed until April 2026 in Accountancy Daily
Dec 01, 2021
Flora Nelmes discusses the opportunities to review existing wills and explore IHT, as the residence nil rate band is to remain frozen until April 2026, in Lawyer Monthly
Oct 28, 2021
Doubling of time limit for payment of CGT on residential property transactions

© Hunters Law LLP 2022 | Privacy NoticeLegal & Regulatory | Cookies Policy | Complaints Procedure.

Hunters Law LLP is authorised and regulated by the Solicitors Regulation Authority (number 657218)