Q&As

A is named as sole executor with the provision that, if A is unable or unwilling to act, then B should be appointed to act instead. A has lost capacity but has attorneys appointed under a valid financial lasting power of attorney. In these circumstances, can A’s attorneys renounce probate on A’s behalf, leaving B to step in to handle the administration of the estate?

read titleRead full title
Produced in partnership with Lynne Counsell of 9 Stone Buildings
Published on LexisPSL on 09/05/2019

The following Private Client Q&A Produced in partnership with Lynne Counsell of 9 Stone Buildings provides comprehensive and up to date legal information covering:

  • A is named as sole executor with the provision that, if A is unable or unwilling to act, then B should be appointed to act instead. A has lost capacity but has attorneys appointed under a valid financial lasting power of attorney. In these circumstances, can A’s attorneys renounce probate on A’s behalf, leaving B to step in to handle the administration of the estate?
  • Mental incapacity of executor
  • NCPR 1987, SI 1987/2024, r 35
  • Substituted appointment
  • Summary

Mental incapacity of executor

Mental capacity is a ground upon which an executor can be excluded from probate (see Evans v Tyler (1849) 163 ER 1266 at para [131] (not reported on LexisNexis®).

The general position regarding an incapacitated sole executor is now dealt with in the Non-Contentious Probate Rules 1987 (NCPR 1987), SI 1987/2024, r 35. Under NCPR 1987, SI 1987/2024, the usual practice is for the district judge or registrar to make a grant of administration (previously called a ‘durante dementia’) for the use and benefit of A until further representation be granted or in such other way as the district judge or registrar may direct. See also NCPR 1987, SI 1987/2024, r 31.

NCPR 1987, SI 1987/2024, r 35

Related documents:

Popular documents