I have been asked to deal with a sale of a property by Attorney. The person is an Attorney for an elderly man who has lost capacity and in full time residential care.
I have seen a copy of the Will (not prepared by me) whereby the property is a specific gift to the Attorney residue to other parties. Basic drafting no provision to receive proceeds of sale etc.
Will the gift adeem on sale? I am aware that a sale by a Deputy can be saved but what about sale by an Attorney? The only point of reference I can find appears to be a Scottish case ‘Turner’?
Under English Law, there is no automatic saving provision so that a sale by the attorney will adeem the gift.
Although I believe the Australian courts have decided otherwise (Vietel?), and some observers believe that decision should be “persuasive” to an English court, I am not aware that it has been adopted.
Is there any evidence that the scenario may ever have been discussed with P and, if so, had he expressed any particular view. A review of the will instructions file might be appropriate.
In any event, it is open to the attorney to apply to the Court of Protection for an order to sell the property which, if made in the right terms, will have the effect of saving the value of the gift. However, in order to make the application, the attorney will need to be aware of the gift which raises the subsidiary question of whether the attorney is entitled to know the contents of the will – might disclosure be a breach of the confidence owed to P? The answer could also depend on relationships between the attorney and the residuary beneficiaries.
Yes the gift will adeem, the attorney should apply for an order for sale under para 8 of schedule 2 of the MCA 2005.
Denby & Co
I have encountered a similar situation. We made a successful application to the COP for an order authorising the release of the Will to the attorneys who were the nephew and godson of the donor.
The statutory provisions referred to by Richard Denby seem only to relate to deputies and not attorneys. If that is the case it does seem a bit of anomaly that an attorney cannot have the benefit of a similar provision and it may be that the only option is make an application for a Statutory Will.
My reading of s.16(2) MCA 2005 is that the court has power to make an order (a) relating to P’s property and affairs, or (b) to appoint a deputy. If correct, then the power of the court under s.18(4) applies regardless of whether there is an attorney or a deputy, subject only to the requirement that P does not have the capacity to make the decision (and that the proposed decision is in the best interests of P).
It is available to Attorneys – I have recently obtained such an order.
Denby & Co
It’s a lesson to us all to advise the Donor about Will disclosure to attorney’s to avoid these issues. In the past we have occasionally put specific instructions in LPA’s although these days we tend toward side letters. Much cheaper than Court Orders.
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