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10.10 pm

The Parliamentary Under-Secretary of State for Constitutional Affairs (Mr. David Lammy): I congratulate my hon. Friend on securing this short debate.

I thank my hon. Friend for raising issues surrounding the granting of letters of administration to Mr. David Weaver. Mr. David Weaver wished to administer the estate on behalf of his aunt, Miss Enid Jenkins. In essence, my hon. Friend raises matters of principle relating, first, to enduring powers of attorney and, secondly, to the administration of intestate estates. Perhaps he will therefore excuse me if I outline briefly what those two things are.

A power of attorney is a power to act on behalf of someone else. The person may be temporarily physically incapacitated and need someone to conduct business on their behalf, or they may be due to go abroad for a long period and need someone to collect rents, pay taxes and so on. It is entirely a matter for the individual to decide to whom to give power and what powers the attorney can have. That sort of power of attorney ceases to have effect if the person who made it dies or loses mental capacity. An enduring power of attorney differs from an ordinary power, as it can survive the loss of an individual's mental capacity provided that it is registered with the Court of Protection.

When a person dies intestate—without leaving a will—his or her estate is distributed according to a scheme laid down by the section 26 of the Administration of Estates Act 1925, as amended. Entitlement under this scheme, which is designed to reflect the wishes of the average person, varies according to which relatives, if any, survive the deceased. The estate is distributed in a strict order of priority: to the spouse; to children of the deceased and the issue of any who has predeceased that person; if none, to the parents of the deceased; if none, to the brothers or sisters of the deceased; if none, to the grandparents; and if none, to uncles or aunts. When there are no relatives, or none can be found, the estate passes to the Crown, the Duchy of Lancaster or the Duchy of Cornwall.

There is a distinction between attorneys and the administrator of an estate. The attorney acts on behalf of the person who chooses them. The administrator must act according to a set of rules, because the deceased person did not make a will.

As I said, my hon. Friend raises these issues on behalf of his constituent, Mr. John Weaver. Mr. John Weaver is a relative of Miss Jenkins. Miss Jenkins appointed him

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to act for her, as her attorney, by an enduring power of attorney in February 2000, which allowed him to deal with her assets during her lifetime. That is very important.

In order for an enduring power to be used during the mental incapacity of the person, it must be registered with the Court of Protection. The attorney applied to the Court of Protection to register the enduring power of attorney in July 2000. As part of the process, he had to give notice of the application to certain relatives. Mr. David Weaver and most of the other nieces and nephews objected to the application on various grounds.

The objections were considered by the master of the Court of Protection at a hearing on 8 February 2001. John Weaver, David Weaver and other relatives attended the hearing. The court carefully considered all the evidence, but it decided to dismiss the objections and ordered that the enduring power of attorney be registered. The attorney was also ordered to account to solicitors annually.

As I have said, an enduring power—like any power of attorney—lasts only for the lifetime of the person who made it. It is automatically revoked on death, and the Court of Protection cancels a registered power when the person has died. The estate of the deceased is then dealt with under probate law in the way that any other person's estate is dealt with.

A few weeks after the hearing about the enduring power, Miss Jenkins passed away. This ended the Court of Protection's jurisdiction over her affairs. As no will was found, Miss Jenkins died intestate. Mr. John Weaver, as her former attorney, felt that it would have been appropriate that he be granted letters of administration so that he could administer her estate. He was entitled to apply; he did not apply. Mr. David Weaver applied and obtained them.

I come now to the issue of the letters of administration in this case. Miss Jenkins died on 3 March 2001 and on 12 March of that year, David Victor Weaver applied to the Probate Registry of Wales for a grant of letters of administration of Miss Jenkins's estate. Mr. Weaver applied personally, without the assistance of a solicitor. In his application, David Weaver swore upon oath that Miss Jenkins died without leaving a will, and that she was a spinster whose closest living relatives were the seven children of her five half brothers and sisters. All her half brothers and sisters had predeceased her.

In these circumstances, any of Miss Jenkins's half-nieces and nephews are entitled to apply for letters of administration of her estate. When there is any dispute between persons interested in an estate, the issue of probate or letters of administration may be delayed until those disputes are resolved, by any of the parties entering a caveat. No caveat was entered in Miss Jenkins's estate.

On 29 March 2001, letters of administration of Miss Jenkins's estate were granted to David Victor Weaver on the basis that he was the son of Ivor Weaver, one of Miss Jenkins's half-brothers, who had died in her lifetime. His entitlement to take letters of administration was equal to that of Miss Jenkins's other half-nieces and nephews and there was no need for him to notify or obtain the agreement of any of the others. If my hon.

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Friend is suggesting that there are closer relatives to the deceased than the half-nephews and nieces, it is a serious matter about which the probate registrar should be notified. However, he should be clear that age is not a criteria for the order in which the hierarchy should work.

As the administrator of Miss Jenkins's estate, David Weaver is required by the Administration of Estates Act 1925 to collect her assets, pay her debts and distribute the remainder of her estate among those entitled to it. In these circumstances, the estate falls to be divided equally among her half-nephews and nieces. David Weaver gave a sworn undertaking to administer the estate according to the law and, when required, to supply a full inventory of the estate and give an account of that to the court.

On 8 April 2001, John Weaver, who had been Miss Jenkins's attorney under an enduring power of attorney, as my hon. Friend said, entered into correspondence with the Probate Registry of Wales and expressed concerns that he had not received his proper share of Miss Jenkins's estate. If a beneficiary has concerns about the administration of an estate, he may issue a summons requesting an order that requires the administrator to file in court an inventory and account of his administration of the estate. That will usually provide sufficient information to the beneficiary either to set his mind at rest or to suggest that further action should be taken. On four occasions, the deputy district probate registrar of Wales suggested to John Weaver that he should consider issuing a summons for an inventory and account of the estate, but he has not, as yet, done so.

As far as the administration of an estate is concerned, it is assumed that those who stand to inherit from an estate should have a vested interest in seeing that it is promptly and properly distributed. The law therefore provides that the order of priority for those eligible to make an application for letters of administration is the same as for those who benefit. The law also provides that if there are no surviving relatives or if surviving relatives do not wish to take out a grant, a grant may be issued to the Treasury Solicitor on behalf of the Crown. The present law therefore provides adequately for the issue of a grant and for the estate to be administered. The process is clear, tried and tested and works well. It is our view that it is unnecessary to change it.

It is difficult to understand what purpose would be served by joining holders of an enduring power of attorney to the eligible class of those who may apply to administer an intestate estate. A person with an EPA could bring nothing extra to the administration that the present class cannot provide, especially because he might not be a relative of the deceased. Unless there is agreement to the contrary from beneficiaries, there is no room for discretion when administering the estate—it must be administered as set out in the intestacy rules. In addition, if the EPA holder were not a beneficiary, it would produce a situation in which a person from outside the family administered the estate for family members. That would be against the whole policy intention behind the intestacy rules, which limit involvement in administration to the family of the deceased who are beneficiaries. In addition, the only logical place to put attorneys is between family members and the Crown. However, their function would then be only to distribute the estate to the family or simply to pass the estate to the Crown.

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Finally, as I have already said, the purpose of an EPA and that of a grant of representation are quite different. The first is used to look after the affairs of people during their lifetime in such a way as to benefit them most. The purpose of letters of administration is to distribute the deceased's estate among the beneficiaries in accordance with rules laid down by law. They are separate functions; it does not follow that because a person holds an enduring power of attorney they are automatically suitable to be granted letters of administration.

The review of probate services that was conducted in 2001 made recommendations for the modernisation of certain aspects of the service, including the conduct of personal applications such as Mr. Weaver's. A public consultation on the main recommendations concluded on 28 February 2003; officials are analysing the responses.

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The whole thrust of Government policy in this area is, properly, to encourage people to make wills—to set out their precise intent during their lifetime to avoid family disputes. Where disputes arise, family members must make their application for the grant on the basis of the intestacy laws.

I hope that I have explained to my hon. Friend why there is a clear distinction between having an enduring power of attorney during someone's lifetime—whereby one is clearly aware of that person's intent, having been asked to do a job of work for them—and a situation in which someone dies having failed to make a will, whereupon the state takes over and the estate is administered under the intestacy laws.

Question put and agreed to.

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