It is commonplace for people to appoint siblings or friends as their executors. When they do and they are of a similar age, there is a risk that when the person who has made the will dies, the proposed executor will have predeceased them or lack the mental capacity to act as executor.
Clearly, it is sensible to make a will which caters for this possibility. In a recent case, a will by which a man appointed his second wife and a niece as his executors led to questions that needed to be answered.
The wife was the sole beneficiary of the man’s estate. In 2003, he made a will that specifically excluded his daughter by his first marriage, from whom he was estranged. In 2013, his wife moved in with her own daughter so that she could be better cared for and she gave her daughter a Lasting Power of Attorney (LPA) over her affairs, which was registered in 2014. She was suffering from the early stages of dementia, but was still mentally fit to execute a will. Her dementia continued to advance and by 2015 she required full-time care and moved into a residential home.
The man died in 2016. The joint assets passed directly to his wife, leaving a residuary estate of about £60,000 to distribute. His estranged daughter, who lives in Australia with her husband and is in a difficult financial position, questioned the validity of the will and put a ‘caveat’ on the estate, which prevented it being distributed until the issue was resolved. She also claimed that her father had an obligation to provide for her financially.
The niece wished to have no part in the proceedings. In subsequently granting the wife’s daughter’s application to remove the caveat, the judge hearing the claim observed that the man’s daughter had taken no active steps to challenge the validity of her father’s will. Her stance had resulted in a stalemate and an unjustified and unnecessary delay of over two years in the administration of the estate.
The wife’s daughter, as attorney, then applied to the High Court to replace the niece as second executor, in addition to administering her mother’s affairs under her LPA.
The Court held that as the man’s wife was the sole beneficiary of the estate and the LPA allowed her daughter to deal with her financial and property affairs without restriction, it was within the daughter’s powers under the LPA to deal with the executorship of the estate.