The role of being Executor to a Will is a big responsibility and requires a high duty of care in managing and protecting the deceased’s estate. But what happens when the individual named as Executor for a Will loses mental capacity themselves and can no longer fulfil the duties required?
What happens if mental capacity is lost before the Testator has died?
If the Executor loses capacity while the Testator (owner of the Will) is still alive, the Testator should review their Will and amend this to remove or replace the Executor. It may be possible to make this amendment by way of a Codicil, which acts as an addendum to a Will.
Regardless of what you expect to happen, it is always recommended that you appoint more than one Executor, or at the very least include a secondary Executor for appointment if your first choice of Executor is unable to act – for example because they have died before you or lost capacity.
Some people take a different path and choose to appoint professional Executors, for example a firm of solicitors to ensure consistency and to avoid any complexities caused by Executors predeceasing or losing capacity.
What happens if mental capacity is lost after the Testator has died?
There are a few circumstances that could well become reality if an Executor is found to lack mental capacity after the Testator has died.
1. In the case of multiple Executor’s, those who are named and who still have full mental capacity will have to apply for a Grant of Probate with ‘power reserved’ to the Executor who is incapacitated. This essentially bypasses the need for approval from all parties in order to execute the contents of the Will, and to ensure that no Executor can act without the other deliberately.
2. If a substitute Executor is named in the Will then they will take the place of the Executor with diminished capacity.
3. If the Executor who has lost capacity is the sole Executor and there are no substitute Executors, or those Executors are unable or unwilling to act themselves, then someone else will need to act in place of the incapacitated Executor.
4. If the incapacitated Executor has appointed an Attorney under a Lasting Power of Attorney or registered Ending Power of Attorney, the Attorney themselves could act as Personal Representative on behalf of the Executor in connection with administration of the estate (although they are not obliged to act).
Rule 35 of the Non-Contentious Probate Rules 1987 (NCPR 1987) allows an Attorney to make an application to the Probate Registry for a Grant of Letters of Administration (with Will annexed) – allowing them to administer the estate in the same way as a Grant of Probate – provided all other relevant persons have been ‘cleared off’. This means there must be no one else who is entitled to act within the order of priority (Rule 20 NCPR 1987) in the same way as the incapacitated Executor.
What happens if the Executor becomes incapacitated after the Grant of Probate has been issued?
If a sole Executor loses capacity after the Grant of Probate has been issued, that Grant will not be revoked but instead a new Personal Representative must be appointed under the NCPR 1987 Guidelines. They will then be able to apply for and obtain a new Grant (with power reserved to the original incapacitated Executor) enabling them to take over administration of the Deceased’s estate.
Likewise, an Attorney appointed by the incapacitated Executor when they still had capacity can apply for a new Grant if there is no one else to do this under the NCPR 1987 Guidelines.
If the incapacitated Executor has a Deputy appointed by the Court of Protection (an individual who is appointed to make decisions for you once you have lost capacity to make them yourself), that Deputy can act in place of the incapacitated Executor provided there is an Order by the Court of Protection authorising them to do so. The Court is only likely to give authority when the incapacitated Executor is a beneficiary to the estate.
What should you do to safeguard your Will and its contents?
It’s important to keep your Will under review and check it every year or so, as personal and financial circumstances may change. Not only does this ensure that your most recent wishes are likely to be followed, but it also enables you to make sure you have the right people appointed as Executors – with extra provisions included in the event that your chosen Executors are unable to act.
Our Private Client Team would be more than happy to review your Will with you to ensure that your estate and family will be protected after you are gone – with advice available on how best to handle individual Executor enquiries and issues.