Whittaker v Hancock

The case provides clarification of the application of s.50 of the Administration of Justice Act 1985 ("the 1985 Act") – the power of the High Court to substitute or remove a personal representative. In doing so guidance was given on the interaction between powers of attorney and those of a personal representative.

The deceased had made a will which appointed his wife and niece as joint executrices, with his wife as the sole beneficiary. No provision was made for the deceased's daughter (the Third Defendant) who subsequently questioned the will's validity.

Before his death the deceased's wife executed a lasting power of attorney in favour of her daughter (the wife's daughter as opposed to the deceased's daughter and Third Defendant), who was the Claimant. The wife was subsequently moved into full time residential care as a result of her dementia.

In these proceedings the Claimant applied under s.50 of the 1985 Act to be substituted as personal representative for the deceased's estate in place of the deceased's wife. The wife lacked capacity to consent to this. The claim was resisted by the deceased's daughter who argued that the LPA did not give the Claimant power to represent the wife in this way – it was said that the LPA only permitted the Claimant to deal with the wife's property and financial affairs, not the deceased's financial affairs.

Master Shuman rejected that argument, observing that the LPA was not subject to any limitations. As a result, the Claimant's authority was subject only to the provisions of the Mental Capacity Act 2005, notably the requirement to act in the wife's best interests. This means that the Claimant was empowered to make decisions about the wife's "property and financial affairs", which included the deceased's estate given that the wife was the sole beneficiary. The Claimant could also have brought the application as attorney for the wife who was a joint executrix. Importantly, the Claimant was not seeking to act in her own right but in a representative capacity as attorney.

In the event that the above approach was found to be incorrect, Master Shuman held that the wife could be added as the Claimant and the current Claimant appointed as her litigation friend.

Comment

This case is a useful reminder of the breadth of authority contained in most property and affairs LPAs. It is now clear that this covers the administration of an estate where P is a sole beneficiary.