The High Court has refused an application by three siblings to appoint an independent solicitor as administrator ad litem of their late mother’s estate, saying the proposed appointment was neither necessary nor expedient under section 27(4) of the Succession Act 1965.
The applicants want to challenge their mother’s 2014 will on the ground that she lacked capacity when she made it. The will names another daughter, anonymised as G., as sole executrix and gives her the main estate asset, a substantial dwelling house in an unnamed major city. All four children are to share the residue.
The judge, Ms Justice Stack, said the application was brought to appoint someone to defend the planned will challenge. She distinguished that purpose from a general allegation of executor misconduct, which was not made in this case.
The judgment records that G. did not understand the significance of the application or the proposed challenge, and was not capable of giving instructions about them. In the judge’s assessment for this application, G. believed she was entitled to the family home under a deed of trust and did not appear to understand that her entitlement depended on the 2014 will being upheld. Those observations were limited to the application before the court; the judge said capacity should be determined in an appropriate application under the Assisted Decision-Making (Capacity) Act 2015.
The judge concluded that the procedure under Order 79, rule 27 of the Rules of the Superior Courts should be used to address G.’s representation. She said an independent administrator appointed for the applicants’ proposed challenge would add expense and another party, while someone would still have to be appointed to act for G. The court therefore refused the application. It did not decide whether the 2014 will was valid or whether the deceased had capacity when she signed it.
The judgment said the next step should be an application in the Circuit Court for a declaration about G.’s capacity under the 2015 Act. If appropriate, a decision-making representative could then be appointed to apply for letters of administration or defend the will challenge on G.’s behalf, or take other steps in her best interests.