Q&As

What is the correct wording to use for an attorney to renounce probate on behalf of a sole executor and will the Probate Registry still require evidence of incapacity? Upon renouncing, the attorney is named as an executor in their own right.

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Produced in partnership with Chris Bryden of 4 King’s Bench Walk
Published on LexisPSL on 03/10/2019

The following Wills & Probate Q&A produced in partnership with Chris Bryden of 4 King’s Bench Walk provides comprehensive and up to date legal information covering:

  • What is the correct wording to use for an attorney to renounce probate on behalf of a sole executor and will the Probate Registry still require evidence of incapacity? Upon renouncing, the attorney is named as an executor in their own right.

What is the correct wording to use for an attorney to renounce probate on behalf of a sole executor and will the Probate Registry still require evidence of incapacity? Upon renouncing, the attorney is named as an executor in their own right.

For the purposes of this Q&A, we have assumed that no grant was made to the sole executor who has lost capacity. It is further assumed that the Q&A refers to an attorney acting under a registered enduring or lasting power of attorney (LPA) who wishes to renounce administration for the use and benefit of the sole executor, as referred to in Non-Contentious Probate Rules 1987 (NCPR 1987), SI 1987/2024, r 35(2)(c).

NCPR 1987, SI 1987/2024, r 35(1) provides:

‘Unless a registrar otherwise directs, no grant shall be made under this rule unless all persons entitled in the same degree as the incapable person referred to in paragraph (2) below have been cleared off.’

NCPR 1987, SI 1987/2024, r 35(2) provides:

‘Where a district judge or registrar is satisfied that a person entitled to a grant lacks capacity within the meaning of the Mental Capacity Act 2005 to manage his affairs, administration for his use and benefit, limited until further representation be granted or in such other way as the district judge or registrar may direct, may be granted in the following order of priority—

  1. to the person

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