I am acting in a probate matter on behalf of two executors. The brothers of one of the executors challenged the will and a Settlement Agreement was signed. The agreement stated that the two current executors would appoint two partners of my firm to act as Attorneys under a PA11. In addition the attorneys would have ‘sole conduct of the sale’ and distribution of the sale proceeds. The brothers would be kept updated on the progress of the sale.
Can anyone confirm the extent of the attorney powers under these circumstances?
The brothers are of the impression that the executors should have no involvement at all and all decisions regarding the sale should be taken solely by the attorneys. The executors want to appoint a particular estate agent for the sale and have final say on the sale price. They think they have the right to do this as they remain executors and were not removed by a court order.
Can the attorneys override the wishes of the executors?
To be my lawful attorney/attorneys for the purposes of obtaining Letters of Administration of the estate of the said deceased to be granted to them for my use and benefit and until further representation be
granted.
And I hereby promise to ratify and confirm whatever the said attorney shall lawfully do or cause to be done in the Premises
It is clear that, as long as the attorneys, are acting within the scope for which they have been appointed, they can take any lawful action the donor could have, and the donor agrees to ratify it.
However, it is also clear that the type of attorney granted in this case is an ordinary power of attorney, and my belief, although I have no legal authority for it, is that an attorney under an ordinary power of attorney must follow his client’s lawful instructions.
I do note you have an added complexity in this case that the purpose of appointing the attorneys seems to have been to ensure that the two executors could not act in person. Therefore, it seems reasonable to ask, whether this limits the scope of the attorney’s power such that they should not just follow the donor’s instructions. In my view, that is not a reasonable interpretation because it is not a limit on the scope of his power but a limit on his ability to act as the donor’s agent, which is, in fact at the very root of the meaning of being someone’s attorney. Things would, of course be different, if the instruction was unlawful; for example, if in some way it was a breach of the attorney’s duties as personal representative.
Is the best course of action to go back to the other side and explain that although I can put their views to the executors, the executors are free to disregard them and the partners as attorneys must follow the executors’ instructions?
Presumably it would be up to the other side to consult the solicitors they instructed on the Settlement Agreement if they are unhappy about this.
Is the correct form in this case the PA12 not the PA11?
Regarding whether the settlement agreement limits the attorneys rights to follow the donee’s instructions, this question is not just a question for their lawyers. It is also a question for you as you do not want to act in breach of the agreement.
My view is the agreement was poorly drafted, and I am not sure that an agreement saying someone is your attorney but can’t follow your instructions even makes sense as an attorney is a person’s agent. I also note that an interpretation that an attorney cannot follow their donee’s instructions creates a difficult situation if the attorney would, regardless of what the donee told them to do, have made that decision.
Of course, they could try and argue that, in this agreement, “sole conduct of the sale” when understood against the relevant factual background, means that the attorneys cannot take the donee’s instructions or possibly that the attorney has to make an independent judgment rather than following the donee’s instructions unthinkingly. This latter interpretation seems a more reasonable interpretation that the other side could argue for
Regarding exactly what you should do, I would not want to comment on that as I have not looked into the law of agency to support my analysis with authorities.
I think the intention would be clearer if the settlement agreement said the attorneys have exclusive conduct of the sale and distribution of the proceeds. In commercial agency agreements, sole, exclusive and non exclusive have specific distinct meanings as to the powers retained by the principal.