Analysis
By his Will dated 23 September 2003 (”Will”) John Sidney Parker (”Testator”) appointed as his executrices the First and Second Defendants. The sole beneficiary of his estate was his second wife, the Second Defendant. She had been obliged to leave the family home to be cared for by her daughter, the Claimant. On 29 October 2013 the Second Defendant executed a Lasting Power of Attorney (”LPA”) in favour of the Claimant and this was registered on 16 January 2014. The Second Defendant, who had been diagnosed with triple dementia, subsequently moved into full time residential care. The Testator died on 4 March 2016 and his interest in the family home and two joint accounts passed by survivorship to the Second Defendant. The estate, which consisted principally of cash in bank and building society accounts, had a net value of approximately £60,000. The Testator had made no financial provision for his daughter, the First Defendant, who lived in Australia. On 20 July 2016 she caused a caveat to be entered, thereby preventing the issue of a grant of Probate. This had a prejudicial effect on the Second Defendant who could not access the funds in the estate to help pay the cost of her care. In the event, the Third Defendant brought no claim challenging the validity of the Will but through her solicitors intimated a claim for financial provision pursuant to the Inheritance (Provision for Family and Dependants) Act 1975 (”1975 Act”). The First Defendant was not prepared to incur costs in removing the caveat and the Third Defendant was dilatory in progressing with the threatened claim under the 1975 Act. Consequently, the Claimant brought a claim for the removal of the caveat and to be appointed in place of her mother as substitute personal representative pursuant to Section 50 of the Administration of Justice Act 1985 (”1985 Act”). The Third Defendant applied for a stay for the purposes of alternative dispute resolution and to enable her to set out her evidence. No settlement was achieved and her witness statement set out her financial position and stated that she did not intend to challenge the validity of the Will. However, she took no steps to remove the caveat. On 11 October 2018 an Order was made to remove the caveat and directions were given to the Third Defendant to issue and serve her claim under the 1975 Act with supporting evidence by 15 November 2018.
Held (granting the application to substitute the personal representative):
A submission on behalf of the Third Defendant that the Claimant was being disingenuous in seeking to deal with the estate herself and bypass the First Defendant was rejected. The question was whether the Claimant should be substituted for the Second Defendant who lacked capacity. The real issue was a technical one as to the standing of the Claimant to bring the claim as an attorney under the LPA. There was no evidence supporting the suggestion that the Second Defendant did not have capacity to make the LPA and it should not be construed restrictively to exclude the Second Defendant’s interest in the estate. The Claimant had the standing to bring the claim based on a wide reading of the LPA and an analysis of the Non-Contentious Probate Rules 1987. If necessary, if that analysis was wrong, the position could be remedied by adding the Second Defendant as a claimant and appointing Claimant as her litigation friend. The administration of the Testator’s estate needed to proceed; a delay of over two years was unacceptable and, therefore, it was necessary to substitute the Claimant as personal representative in place of the Second Defendant in order for the administration to proceed, subject to any order that may be made under the 1975 Act in favour of the Third Defendant.
JUDGMENT MASTER SHUMAN : [1] The claimant has brought a claim under section 50 of the Administration of Justice Act 1985 (”the 1985 Act”) to be appointed as substitute personal representative of the estate of John Parker (”the deceased”) in place of the second defendant, her mother, and for a caveat entered by the third …Continue reading "Whittaker v Hancock & ors [2019] WTLR 1043"