The Executors must carry out their role with a high duty of care owed to the Deceased’s estate. If an Executor begins to lose mental capacity, then there can be several issues that will arise in the course of administering the Estate. They can include failing to complete their duties properly and making administrative errors, taking inappropriate risks with the Estates’ assets or even having difficulty in understanding what their obligations are and taking incorrect decisions in relation to administration of the Estate.
The appropriate action to take where the Executor has lost capacity will vary depending on what stage in the administration process this happens, as below.
What happens if the Executor loses capacity whilst the testator is still alive?
If the Executor loses mental capacity whilst the Testator is still living, then the Testator should review their Will and amend this, replacing this Executor with another. The Testator should ensure that they review their Will on a regular basis to ensure that there has been no alteration in circumstances that require their Will to be updated.
They should also try as far as possible, to name at least 2 Executors, of good health, to administer the Estate on their death, to avoid any complexities arising in such event. This may also be achieved by appointing a professional trustee to act in the role of executor, although it is important to bear in mind that appointing a professional trustee may incur charges.
What happens if the Executor loses capacity after the testator has passed away and a Grant of Probate has not been obtained?
The executor(s) who have the necessary capacity can administer the estate.
The Grant of Probate (the document that is obtained when someone dies) needs to be made with power reserved to the executor lacking capacity, just in case their capacity recovers during the estate administration.
Before arranging for power to be reserved, it may be necessary for the remaining executors to check whether there is an attorney appointed to act for the executor lacking capacity, as they might want to act on behalf of the executor lacking capacity, although the attorney is not obliged to act in the estate administration.
If there are no other Executors, who are willing to act, then the Non-Contentious Probate Rules 1987 (NCPR 1987), must be considered to determine who is entitled to apply for the grant of Probate.
What happens if there is more than one executor and one of the executors loses capacity after the testator dies and a Grant of Probate has been obtained?
The Original Grant of Probate will be revoked.
The Executor who still has mental capacity will have to apply for a new Grant with power being reserved to the executor who has lost capacity, in case they regain capacity. Any appointed attorney of the Executor who has lost capacity should be considered, but they are not obliged to act as executors.
If a sole executor loses capacity after the testator passes away and a Grant of Probate has been obtained
The original Grant of Probate to the Executor who has lost capacity is not revoked.
A new Personal Representative must be appointed under the NCPR 1987 which provides guidelines as to who is entitled to apply for the Grant of Probate. The appointed Personal Representative will then be able to obtain a new Grant, which will be made with power being reserved to the originally appointed executor, should they regain the necessary mental capacity to administer the Estate.
It can be a very difficult situation for any co-executors or beneficiaries to navigate, particularly where the Executor is a close family member or friend. However, it is important that they act as early as possible where they notice the Executor begin to lose capacity to minimise any potential risk to the Estate.
To seek legal advice and guidance through the Process of determining the appropriate action to take in such event, please get in touch today to speak with our specialist team of probate solicitors.
