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Published On: January 4, 2021 | Blog | 0 comments

Whittaker v Hancock: Obtaining a grant of probate for an attorney

The case of Whittaker v Hancock [2018] EWHC 3478 (Ch) dealt with a complicated and unusual probate problem, and required some creative thinking in order to unlock an estate! Anthony Gold acted for the successful Claimant, along with Richard Devereux-Cooke of 3 Stone.

The matter concerned the estate of John Parker deceased, the second husband of Margaret Parker. John died in March 2016.  In July 2016, Anthony Gold was instructed by Margaret’s daughter Jan Whittaker, as attorney for Margaret.  Jan had power of attorney for her mother who had lost capacity and was in a nursing home.  John’s will appointed Margaret and his niece, Christine Hancock, as executors of his estate – it is a small estate worth approximately £60,000 on top of a number of assets that have passed to Margaret as a joint tenant.  Anthony Gold were instructed because John’s daughter Linda Davidson, had entered a caveat and sent a letter before action threatening an Inheritance Act claim.   Linda had expressly been left out of the will, with the reasons explained in a side letter.

Anthony Gold immediately invited Linda’s solicitors to remove the caveat so that we could administer the estate and deal with the Inheritance Act claim.  They refused to do so.  A warning was served, and an appearance entered making very general allegations that the will might be invalid.  No further explanation or evidence was ever provided supporting those allegations.  Unfortunately, what followed was a period of complete deadlock.

Jan and Christine had started the process of administration prior to the caveat being entered.  However, it was not possible to get a Grant because of the caveat.  Christine did not wish to renounce her role as executor but was advised that she faced a possible costs liability in taking action to remove the caveat, so did not wish to do so.  As Christine would neither renounce or take action, Jan could not easily clear her off in order to take an attorney grant.  It was impossible to use a citation (as the executor had intermeddled), and we did not want to remove Christine under s50 Administration of Justice Act 1985 (she had not done anything wrong after all).  In any event, that would not deal with the caveat issue.

All this time, we were unable to make any progress on dealing with the claim against the estate, and Margaret’s health was worsening meaning that her need for funding was increasing all the time.

Eventually, in an attempt to bring matters to a head, proceedings were issued by Jan under s50 for an attorney grant (jointly with Christine), and removal of the caveat.  In order to limit the time and costs of the application, everything was dealt with in one claim.  Margaret was named as a Defendant to the matter although (as Master Shuman pointed out) an alternative way of proceeding would have been to bring the proceedings in Margaret’s name with Jan as her litigation friend.  Proceedings were issued and served.  At the end of September 2018, Linda Davidson finally admitted that she was not proceeding with any challenge to the will.  Master Shuman immediately ordered that the caveat be removed so that a grant could issue whilst reserving judgment on other issues.

Master Shuman confirmed in her judgment that Jan had the right to an attorney grant, and could act jointly with Christine.  However, by the date of judgment the caveat had been removed and a grant was in the process of issuing to Christine so there was no need for Jan to take a grant herself.  Proceedings have now been issued under the Inheritance Act so that progress can finally be made – almost three years after John’s death.

This was an unusual application, made following an unusual set of facts which led to deadlock in the estate.  Hopefully, this sort of application will not be one which is often required!

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

David Wedgwood

Head of Civil Litigation Joint Head of Court of Protection

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