A probate knot untied
Whittaker v Hancock [2018] EWHC 3478 (Ch)
The recent judgment in Whittaker v. Hancock [2018] EWHC 3478 (Ch) shows how obtaining a grant of probate to the estate of a person who has died can become tied in knots, and how some of those knots can be untied.
John Parker and his family
John Sidney Parker (“John”) died on 4 March 2016. He left an elderly widow, Margaret Ann Parker (“Margaret”), who was his second wife, to whom he had been married for nearly thirty years, and an adult daughter, Linda Ann Davidson (“Linda”), who some time ago became an Australian citizen and lives in Australia. Two other people appear in the story: Margaret’s daughter Janet Ann Whittaker (“Janet”), and John’s niece Christine Hancock (“Christine”).
John’s estate was not large. He owned the house he lived in jointly with Margaret, so she inherited it by survivorship, together with two joint bank accounts amounting to about £27,000. His separate estate consisted of about £60,000 in bank and building society accounts. John had made a will in 2003 leaving all of his estate to Margaret, and appointing Margaret and Christine to be his executors. The judgment also records (at paragraph 4) that in a statement accompanying the will, signed by [John] and witnessed by a legal secretary [John] explain[ed] that he ha[d] made no provision for [Linda] because:
“(i) She is not financially dependent upon me.
(ii) She and I have had no contact for the past two and a half years.
(iii) The daughter/father relationship has completely broken down.”
At some point in the following decade, Margaret was diagnosed with dementia, and is now severely demented and incapable of acting as John’s executor. In the autumn of 2013, Margaret created a lasting power of attorney for her property and affairs, appointing her daughter Janet as her attorney, and this power was registered in 2014. Margaret left her home, first to live with Janet and then in 2015 to go into full-time residential care.
None of these facts are at all unusual. They reflect a history which is shared with or very similar to that of many other ordinary families. But nearly three years after his death, John’s estate has not been administered, and has been the subject of High Court litigation. Whilst the administration of the estate has been in limbo, Janet herself has paid for her step-father’s funeral, for his house to be refurbished so that it can be rented in order to contribute to the cost of her mother’s care, and has also funded the shortfall in those care costs. Nor is the litigation about John’s estate at an end. How has this come about? Could it have been avoided? If so, how?
Steps to stalemate
After her father’s death, Linda must have been unhappy to learn of the contents of his will and the statement which went with it. It isn’t surprising that she would want to question the will, and take legal advice about it, especially as she has described herself as being in a difficult financial position, and her solicitors said in correspondence that she and her father had been reconciled before his death, and that she believed John had been neglected by Margaret and her family.
In July 2016 Linda took a step to make sure that probate of her father’s estate could not be granted to the executors, Margaret and Christine, without her being aware of it and having the opportunity to contest it. This was to enter a “caveat”, a type of notice to the probate registry, which is responsible for ordinary grants of probate. A caveat lasts for six months and prevents an ordinary grant of probate being made. At the end of six months it can be renewed. It only costs £20 and involves filling in a simple one-page form to enter or renew a caveat. It is a perfectly reasonable step to take for someone who suspects that a will may not be valid. It gives time to investigate suspicions and explore if doubts and disputes can be resolved by disclosures and correspondence. Executors or beneficiaries named in a will who think that a caveat is groundless can themselves file a kind of notice for it to be removed. But this procedure can lead to stalemate, as it did here, unless and until someone involved either starts hostile probate litigation about the validity of the will by issuing a High Court claim, or applies to a different realm of the High Court which supervises ordinary grants of probate, for the caveat to be removed.
Margaret’s dementia meant she could not do anything at all about the caveat. Christine took legal advice, but said that due to financial reasons she was not prepared to pay for any legal action to remove the caveat. Although Linda asserted that her father’s will might be invalid on more than one ground, she never followed this up with a legal claim, or (it seems) even a letter setting out her suspicions in more detail. It was not until 30 September 2018, over two years since her first caveat, that she filed a witness statement saying unequivocally that she did not intend to challenge the validity of the will.
Two days after the caveat was entered in July 2016, Linda’s solicitors sent a letter to Margaret at her care home, asserting another claim against John’s estate. This was a claim for reasonable financial provision for Linda’s maintenance under the Inheritance (Provision for Family and Dependants) Act 1975. As John’s daughter, Linda is entitled to bring such a claim. But there is no need for a caveat in order to do so, because an Inheritance Act claim does not involve questioning the validity of the will itself. Nor did Linda’s solicitors put forward her Inheritance Act claim in correspondence in accordance with best (and very widely adhered to) professional practice in this area of law, which is by setting out in a letter all the relevant facts about her financial position and other factors which have to be considered in Inheritance Act claims, and providing evidence about them. The history of the correspondence between July 2016 and March 2017, as set out in the judgment, is one in which Janet’s solicitors wrote in detail, and in what the court described as “very clear and measured terms” to Linda’s solicitors, and received little or nothing in response. Linda’s solicitors’ initial letter did not set out the information that it should have done, and it threatened that a claim would be issued straight away. No claim was issued. Whatever the reason for the lack of progress in the correspondence, it only prolonged the limbo of administration.
Janet’s claim to be appointed as a substitute executor
This limbo left Janet in an unenviable position. The court described her unhappiness with the stalemate as “understandable and justified”. For as long as the caveat was in place, she could not seek an ordinary grant of probate under the non-contentious probate rules[1]. These rules reflect an expectation that this is what an attorney is likely to do, as they have specific provisions for attorneys appointed under registered lasting powers of attorney to take a grant of probate, as attorneys, on behalf of an executor who lacks mental capacity.
As an alternative, knowing that Christine would not herself do so, Janet could have filed a summons for a hearing, acting as a litigation friend on behalf of Margaret, asking the court to remove the caveat. It’s understandable that she did not do this, as she would not have wished to incur the costs, any more than Christine would have done. And the costs would have been Janet’s personal risk, unless she had asked the Court of Protection to authorise her to litigate at her mother’s expense to have the caveat removed. But as Margaret is in shortfall even in meeting her care needs, and presumably therefore has no funds either to make an application to the Court of Protection or to litigate a probate claim, Janet would inevitably be taking on the costs risk of any litigation herself. It’s easy to say with hindsight that, at least by mid-2017, the probate court would almost certainly have dealt with such an application by imposing a short time limit on Linda either to start her claim or have the caveat removed, but that may have looked much less clear to Janet and her advisers at the time.
Instead, Janet brought a High Court claim[2] in her own name, seeking to have herself appointed, not as an attorney, but as a substitute executor for her mother. Christine did not oppose this, but Linda did. Indeed, not only did Linda oppose the claim, but she asked the court to delay its hearing so that she could put in further evidence and try and settle the case, also claiming in the summer of 2018 that she was “about to travel across central Queensland, Australia, by road to deal with a personal emergency, had sold her belongings to fund the trip and would apparently have no means of contacting anyone as nowhere would have Wi-Fi connection.” A meeting to attempt settlement of the claim was arranged in September 2018, but was unsuccessful.
Janet’s claim was heard on 11 October 2018 by a Chancery Master, Karen Shuman. Despite the title, a Master is a judge, and makes decisions in exactly the same way that a judge would. At the end of the hearing, the Master directed that Linda’s caveat be removed, and that if she was going to pursue her Inheritance Act claim she was to issue that claim by 15 November 2018. The Master’s reasoned judgment was published on 14 December 2018. It explains why she rejected Linda’s arguments for objecting to Janet’s claim for substitution as her mother’s executor.
Although very clearly set out, the judgment of Master Shuman is not particularly easy reading for non-specialists, as it deals with several technical points of law and legal procedure, relating to probate, disputed executorship and lasting powers of attorney.
The judgment on Janet’s claim
Under the law on the appointment of a substitute executor, an application can only be made “by or on behalf of a personal representative [an executor or administrator] of the deceased or a beneficiary of the estate”. Linda’s only real argument against Janet’s claim was a purely technical argument that these words did not entitle Janet herself to bring the claim. Janet was neither named as an executor or a beneficiary of John’s estate, and Linda argued that the fact that Janet was Margaret’s attorney did not entitle her to bring the claim “on behalf of” Margaret. Linda did not suggest that Janet would be an unsuitable person to be appointed as her step-father’s executor, or that she would not be acting in her mother’s best interests. With hindsight, it would have been helpful for John to have appointed Janet as an executor himself when she became Margaret’s attorney, but it is quite understandable that he may not have thought of it, or decided not to do so.
Janet could unquestionably have made the application to have herself appointed as a substitute executor “on behalf of” her mother, who was both executor and beneficiary, by bringing the claim in her mother’s name and acting as her mother’s litigation friend [i.e. a person of full legal capacity who takes responsibility for litigation on behalf of someone who lacks capacity], either with or without the prior authorisation of the Court of Protection. This would be the conventional approach. Master Shuman herself pointed out both at the hearing and in her judgment that the court could simply direct there and then that Margaret be added as a claimant in the case, with Janet as litigation friend. An attorney who acts as a litigation friend without the authorisation of the Court of Protection is at personal costs risk, but this was a risk that Janet surely faced anyway, given her mother’s limited finances, and her decision to bring the claim in her own name.
Master Shuman decided that it was not necessary to do this, because the extent of decision-making power over Margaret’s property and affairs created by Janet’s unrestricted lasting power of attorney was sufficient to qualify her as acting “on behalf of” Margaret in bringing the claim. Janet successfully argued that “property and financial affairs” for the purposes of decision-making by a property and affairs attorney includes a sole beneficiary’s interest in a deceased person’s estate. A beneficiary with a quantifiable interest in an unadministered estate certainly has the right to have the estate duly administered, but it is long established in law that this is not the same thing as a right to the property itself, even for a sole beneficiary. It is understandable that Master Shuman accepted that Margaret’s right to have the estate duly administered came within the wider definition of property and financial affairs, because it led to what was obviously the just outcome in this case. But her interpretation validates a departure, which might otherwise be unnecessary, from the more obvious approach to an attorney acting in litigation “on behalf of” the person over whose property and affairs they have authority, which is by acting as their litigation friend.
Who pays?
There is no reported costs decision as yet, but the starting point must be that Linda will be liable for Janet’s costs of her claim, having unsuccessfully opposed it. Even if this is the costs order made, and Janet succeeds in enforcing it, a costs order will not reimburse all her legal costs, and unless she has insurance against her liability for costs, Linda will be worse off financially.
Reading the judgment, Linda’s legal position, as reflected in the way the litigation was conducted, appears unattractive. She asserted both that her father’s will was invalid and that it failed to make reasonable provision for her. However understandable the feelings that lay behind these assertions, and however entitled she was to make them immediately after learning of the contents of John’s will and the statement he made with it, she and her solicitors did not follow either of them up with constructive correspondence, or with prompt action. As Linda did not suggest that Janet was unsuitable to act as executor, surely she should have consented to Janet’s claim instead of arguing the technical objection to it? Many applications for appointment of substitute executors are made, and dealt with entirely by consent, and those that are contested are disputes about the suitability of the executor for their task. Master Shuman firmly rejected a suggestion on behalf of Linda that Janet’s position was disingenuous and that in reality she was seeking to administer John’s estate to the exclusion of Christine. She also refused to give any weight to an “oblique suggestion” that the lasting power of attorney itself was not valid. As Master Shuman said [36]:
The administration of [John’s] estate now needs to proceed. [Linda’s] stance has caused an unjustified and unnecessary delay of over two years. This is unacceptable and particularly so when [Margaret] is the sole beneficiary under the 2003 will, is elderly and has undoubted financial needs to assist with her care costs.
What happens next?
As for Linda’s own claims, at some point between July 2016 and September 2018 she and her advisers must have decided — or had investigated sufficiently to be able to decide — that she would not challenge the validity of her father’s will. Once that decision was made, she should have simply let her caveat expire, or voluntarily removed it much earlier. This would have permitted Janet to obtain an ordinary grant of probate as her mother’s attorney, and avoided the need for her to litigate at all. It is perhaps a weakness in the caveat procedure that it is so very easy to obtain repeated renewals of a caveat without any obligation to make progress in pursuing a challenge to the validity of a will.
Master Shuman’s published judgment does not say whether Linda had issued and filed her Inheritance Act claim within the time limit imposed on her, and which had by then expired. I have been told that it has been issued and is a live claim, so I will not comment on any apparent strengths or weaknesses of it. Its outcome will depend either on a judge’s assessment of many facts, or on a negotiated compromise. But the following neutral observations are relevant. John’s estate is worth £60,000 and under his will it is left to his widow of a long marriage, who is in shortfall for her care needs. Linda can ask the court to treat the notional half share of her father’s property which he jointly owned with Margaret as if it was part of his estate for the purposes of her claim for financial provision, and may have done so. The court has a discretion about whether or not to do this. If Linda is pursuing her claim under a conditional fee agreement, as she may well be, as her solicitors prominently advertise their “No Win, No Fee” plan, then she will have to pay any success element of their fee out of whatever she succeeds in claiming from her father’s estate. Conditional fee arrangements are perfectly lawful, and can greatly help claimants who cannot otherwise afford to litigate, but they often create asymmetry of risk between claimants and defendants to Inheritance Act claims. The success fee element can make it more difficult to negotiate a compromise, or for a court order to make adequate provision for the person bringing the claim.
All in all, this case is an unhappy illustration of how legal complications and delay in pursuing potential claims can create problems, even in small estates and where the disputing parties can ill afford to litigate.
Note: this note is commentary and opinion based solely on the published facts and judgment in this case. I have no personal knowledge of any of the individuals involved, nor have I discussed it with any of the lawyers acting in the case, other than to confirm that the 1975 Act claim was issued as directed in the published judgment. I have previously acted in a case where the third defendant’s solicitors and counsel were acting, but I am not currently acting with, on the instructions of, or against, any of the lawyers acting in the case.
[1] Rule 35(2)(b) Non-Contentious Probate Rules 1987
[2] Under s50 of the Administration of Justice Act 1985
