Whittaker v Hancock [2018] EWHC 3478 (Ch)

WTLR Issue: Autumn 2019 #176







By his Will dated 23 September 2003 (”Will”) John Sidney Parker (”Testator”) appointed as his executrices the First and Second Defendants. The sole beneficiary of his estate was his second wife, the Second Defendant. She had been obliged to leave the family home to be cared for by her daughter, the Claimant. On 29 October 2013 the Second Defendant executed a Lasting Power of Attorney (”LPA”) in favour of the Claimant and this was registered on 16 January 2014. The Second Defendant, who had been diagnosed with triple dementia, subsequently moved into full time residential care. The Testator died on 4 March 2016 and his interest in the family home and two joint accounts passed by survivorship to the Second Defendant. The estate, which consisted principally of cash in bank and building society accounts, had a net value of approximately £60,000. The Testator had made no financial provision for his daughter, the First Defendant, who lived in Australia. On 20 July 2016 she caused a caveat to be entered, thereby preventing the issue of a grant of Probate. This had a prejudicial effect on the Second Defendant who could not access the funds in the estate to help pay the cost of her care. In the event, the Third Defendant brought no claim challenging the validity of the Will but through her solicitors intimated a claim for financial provision pursuant to the Inheritance (Provision for Family and Dependants) Act 1975 (”1975 Act”). The First Defendant was not prepared to incur costs in removing the caveat and the Third Defendant was dilatory in progressing with the threatened claim under the 1975 Act. Consequently, the Claimant brought a claim for the removal of the caveat and to be appointed in place of her mother as substitute personal representative pursuant to Section 50 of the Administration of Justice Act 1985 (”1985 Act”). The Third Defendant applied for a stay for the purposes of alternative dispute resolution and to enable her to set out her evidence. No settlement was achieved and her witness statement set out her financial position and stated that she did not intend to challenge the validity of the Will. However, she took no steps to remove the caveat. On 11 October 2018 an Order was made to remove the caveat and directions were given to the Third Defendant to issue and serve her claim under the 1975 Act with supporting evidence by 15 November 2018.

Counsel details

Richard Devereux-Cooke (The Chambers of John McDonnell QC, 3 Stone Buildings, Lincoln’s Inn, London WC2A 3XL, tel 020 7242 4937, e-mail clerks@threestone.law), instructed by Anthony Gold Solicitors (The Counting House, 53 Tooley Street, London SE1 2QN, tel 020 7940 4060, e-mail mail@anthonygold.co.uk), for the claimants.

Julian Reed (3 Pump Court, Temple, London EC4Y 7AJ, tel 020 7353 0711, e-mail clerks@pumpcourtchambers.com) instructed by Contested Wills and Probate Lawyers (18 High Holborn, Holborn, London WC1V 6BX, tel 020 7127 4599) for the defendants.

Cases referenced

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Legislation referenced

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