# what happens when executor of will is incapacitated?



## violetsalmon (23 Aug 2007)

Hi,

Can anyone tell me what's the story when an executor of a will becomes incapacitated?

My two aunts are the executors for my mother's will. Unfortunately, one of them has had a stroke. She can't write, and apparently she's also got some brain damage (moderately severe: she can't concentrate or follow a conversation properly).

Most of the legal stuff has been done and probate has been granted, although the estate hasn't been divided yet. However, all the way through the solicitors have insisted on both the executors signing all documentation. What happens now that one of them can't?

I don't think she'd be able to resign her role as executor voluntarily, as she can't hold a thought for longer than a few seconds.


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## droileen (24 Aug 2007)

Does she have a living will ? If so, you should consult her representative.

In any case, the solicitor mentioned must be informed of her status.


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## violetsalmon (24 Aug 2007)

droileen said:


> Does she have a living will ? If so, you should consult her representative.


 No, she doesn't. 

Even if she did, I thought they didn't have any legal standing; they were just a way of letting others know your preferences, and couldn't be enforced even with regard to your own affairs, let alone your role in dealing with the affairs of others??


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## mf1 (24 Aug 2007)

I suppose it depends really on what remains to be done. If there is no property and its a relatively straightforward distribution, then one executor should be able to instruct the solicitors to proceed. If there is a property to be sold though ordinarily it would involve both executors. 

In any event, the solicitors need to be told and  they can then advise. 
It may be possible ( I don't know for sure) to have the High Court make some form of order or it may even be necessary to take out a further Grant. 

mf


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## violetsalmon (24 Aug 2007)

There is a property, and we do intend to sell it. The will is simple - just a 50:50 split between my brother and me.

Would it be easier if, for the purpose of distribution, we just inherited the property as tenants in common and then sold it ourselves afterwards so the executors wouldn't have to be involved in the sale? In the current climate it might take ages to sell anyway.


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## mf1 (24 Aug 2007)

No - the property complicates it. It does not really matter whether you take it or they sell it - they both have to sign it over anyway unless there is a Court Order dispensing with one or a new Grant is taken out. 

I think you should take proper  advices and then decide what to do. I agree that the property could take some time to sell and it might be preferable to deal with the issue so that when you do want to sell, you'll be unimpeded.   

Good luck. 

mf


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## Madangan (27 Aug 2007)

Like MF1 I am not entirely certain but I think what will need to be done is an ex parte motion (meaning that no third party needs to be put on notice) brought to the high court looking for an order of the high court dispensing with the need for the 2nd executor to sign documents. This is not as daunting as it sounds  your solicitor will probably have a barrister draft an affidavit and motion possibly exhibiting a medical report re your aunt and it will be dealt with by the probate judge who will give directions/make an order etc...

It may take 2/3 months to get all in place i.e to get a court date so this should be put in train asap.


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