Whittaker v Hancock & Ors

On an application under section 50 of the Administration of Justice Act 1985, the court may substitute a personal representative where continued office would prevent the estate being properly administered. The central consideration is the welfare of the beneficiaries and the proper execution of the administration. Misconduct is not essential, although friction alone is insufficient. A registered, general lasting power of attorney covering property and financial affairs may authorise an attorney to apply on behalf of an incapacitated beneficiary who is also a personal representative, particularly where that beneficiary is the sole beneficiary. The testator’s choice of personal representative is relevant but not decisive.

The claimant, acting under a registered lasting power of attorney for the second defendant, sought appointment as substitute personal representative under section 50 of the Administration of Justice Act 1985. The second defendant was an incapacitated executrix and the deceased’s sole beneficiary. The first defendant, the other executrix, did not oppose substitution. The third defendant opposed the application, maintained a caveat, and had indicated an intended claim under section 2 of the Inheritance (Provision for Family and Dependants) Act 1975, but had not issued it or progressed the estate administration. The issues were whether the claimant had standing under the power of attorney and whether substitution was justified.

1. The application succeeded. The claimant was appointed substitute personal representative in place of the second defendant, while the first defendant continued to act. The third defendant’s caveat was ordered to be removed, and she was directed to issue her claim under section 2 of the Inheritance (Provision for Family and Dependants) Act 1975.
2. Under section 50 of the Administration of Justice Act 1985, the court’s overriding concern is the proper administration of the estate and the welfare of those beneficially interested. The principles stated in Thomas & Agnes Carvel Foundation and derived from Letterstedt v Broers apply to personal representatives. Removal or substitution does not require proved misconduct where the existing arrangement prevents proper administration. Friction or hostility alone is insufficient, but relevant friction may support intervention where it impedes administration.
3. The claimant had standing. The lasting power of attorney was validly made, registered, general in its terms, and unrestricted. Its authority to make decisions about the second defendant’s property and financial affairs extended to her interest in the deceased’s estate. The claimant therefore acted representatively as the second defendant’s attorney, not in her own right. The court also accepted that the proceedings could alternatively have been regularised by joining the second defendant as claimant and appointing the claimant as litigation friend.
4. The deceased’s choice of executors was relevant under Kershaw v Micklethwaite, but the first defendant remained in office and the second defendant could no longer act because of incapacity. The prolonged caveat, the absence of a substantive challenge to the will, the first defendant’s inability or unwillingness to progress matters, and the second defendant’s financial and care needs made substitution necessary.