What Happens If An Executor Lacks Mental Capacity?
‘What happens if an Executor lacks mental capacity?’ In his latest blog, Connor Ball-Wood discusses the many scenarios relating to the topic…
If an Executor lacks mental capacity, there can be a number of issues which would prevent them from carrying on in the role; one of which is that they may not be able to fulfil their duties properly and they could make errors when dealing with the deceased’s estate.
The appropriate steps to take where an Executor has lost mental capacity very much depends on the stage of the administration process and whether there are more Executors that have been appointed in the Will.
The Testator Is Alive When The Executor Loses Capacity
If the Executor has lost mental capacity whilst the Testator is living, the Testator should consider reviewing their Will as soon as possible and replace them with another Executor. The Testator will need to have testamentary capacity (the capacity to make a Will) in order to do this.
If possible, when the Testator is reviewing their Will, they should aim to name at least two Executors. A Testator may also wish to consider Professional Executors to act in replacement in the event that all their other Executors have lost mental capacity or cannot act for any other reason at the time of their death.
The Executor Loses Mental Capacity After The Testator Has Died, And There Is More Than One Executor Named In The Will – Before The Grant Of Representation Has Been Obtained
If one of the Executors has lost mental capacity after the Testator has died, but there is another Executor named in the Will who can act, then the Grant of Representation could be applied for with power reserved to the Executor who lacks mental capacity, in any event that the Executor lacking mental capacity recovers and may be able to act in the future.
If the Executor lacking mental capacity has a Lasting Power of Attorney or Enduring Power of Attorney, it may be possible for their Attorney to act for them in the administration of the estate. However, there is no obligation for an Attorney to do so.
Where the Executor lacking mental capacity did not appoint an Attorney, it is also possible for a Deputy, appointed by the Court of Protection, to act on their behalf as long as the order appointing them expressly gives them authority to do so.
However, the simplest and most cost effective option may be to obtain a GP’s medical certification confirming the lack of mental capacity in the form required by the Probate Registry to enable the other Executors who do have mental capacity to proceed with obtaining the Grant of Representation and administering the estate.
The Sole Executor Loses Capacity After The Testator Has Died – Before The Grant Of Representation Has Been Obtained
If there is only one Executor appointed and they have lost mental capacity, the Non-Contentious Probate Rules 1987 will apply to determine who is entitled to apply for the Grant of Representation. Rule 35 of these rules allows a grant to be obtained by an Attorney of the Executor.
The Grant Of Representation Has Been Obtained And One Of The Executors Loses Mental Capacity
If one of the Executors loses mental capacity after the Grant of Representation has been obtained, that Grant of Representation will be revoked.
The Executors that still have mental capacity will need to apply for a new Grant of Representation with powers reserved to the Executor that has lost mental capacity.
The Grant Of Representation Has Been Obtained And The Sole Executor Loses Mental Capacity
If the Sole Executor loses mental capacity after the Grant of Representation has been obtained, that Grant of Representation will not be revoked.
Instead, a new Personal Representative (i.e. a new Executor) will need to be appointed under the Non-Contentious Probate Rules 1987, which provide guidelines as to who is entitled to apply for the new Grant of Representation.
The new Grant of Representation will be made with power reserved to the Executor lacking mental capacity.
How Can We Help?
When making a Will it is always important that people consider reviewing or updating every three to five years and to update them as and when family or friends lose mental capacity.
For further information on ‘What happens if an Executor lacks mental capacity?’, please contact me on 01332 364436 or email me at c.ball-wood@timms-law.com. Alternatively, you can visit the Wills and Probate section of our website here.
January 2023