Named executor of a will is mentally incapacitated can they appoint a personal representative of their choosing?
- Thread starter Silvius
- Start date
I thought so too. In this case a close relative of the executor claims to be "acting for them" but the original executor will remain the official named person on the grant of probate. I queried this with the solicitor in the case (who also happens to be a close relative of the executor) and was told that the executor is capable and acting for themselves. This is not possible...the person is profoundly cognitively impaired. Maybe if the personal representative has power of attorney this could be legal? It still seems strange to me.
You are disputing the solicitor's view - is there any reason to prove that your view is better than his view ?
After all, he may have to stand up in court to justify and most solicitor's do not give undertakings lightly
Also, an executor does not have to do all the legwork himself - he/she is quite entitled to use the services of another person
After all, he may have to stand up in court to justify and most solicitor's do not give undertakings lightly
Also, an executor does not have to do all the legwork himself - he/she is quite entitled to use the services of another person
A power of attorney does not work in this situation. It is not for a solicitor to assess cognitive impairment. An executor cannot appoint a proxy. I don't know how one challenges an executor's capacity however.
As a solicitor, Jpd, I can assure you that not all solicitors are correct in their views. It is healthy to consider alternatives sometimes.
As a solicitor, Jpd, I can assure you that not all solicitors are correct in their views. It is healthy to consider alternatives sometimes.
For context, the executor is indisputably cognitively impaired with advanced alzheimers and requiring full-time care and constant supervision. Cannot complete any tasks unattended. They are also in the end stages of a terminal illness but that's probably not relevant as it's more a physical than mental issue. The fact that the solicitor says this person is capable of acting for themselves is what raised this question for me.
Curlywurly
Registered User
- Messages
- 66
Has a Grant of Probate already issued ? If it has and the Executor has become mentally incapacitated since it issued the Probate Office should be notified and the Grant will be have to revoked by Order of the Probate Officer.
If the Grant has not yet issued and there is only the one Executor named in the will who is now of unsound mind the Committee of that Executor is the only person to whom the Grant will issue. If there is no Committee appointed ( ie Ward of Court) the Probate Officer can make an Order appointing one. An Executor of unsound mind cannot renounce their right. An enduring Power of Attorney is not accepted for Probate applications so if there was one made it is irrelevant.
If the Grant has not yet issued and there is only the one Executor named in the will who is now of unsound mind the Committee of that Executor is the only person to whom the Grant will issue. If there is no Committee appointed ( ie Ward of Court) the Probate Officer can make an Order appointing one. An Executor of unsound mind cannot renounce their right. An enduring Power of Attorney is not accepted for Probate applications so if there was one made it is irrelevant.
Yes, this is spot on and the solicitor is turning a blind eye and going along with it. I've seen it all now
Brendan Burgess
Founder
- Messages
- 53,724
Is there any dispute over the will?
Is it a father leaving everything equally to his children?
Could it be a practical solution to a difficult issue?
However, surely the Executor must turn up for an interview at the Probate Office and it will all fall apart then.
Brendan
Is it a father leaving everything equally to his children?
Could it be a practical solution to a difficult issue?
However, surely the Executor must turn up for an interview at the Probate Office and it will all fall apart then.
Brendan
No. It's certainly an expedient solution. It's gone through probate now and it didn't fall apart. Maybe those interviews aren't happening due to covid? The person with advanced cognitive decline is named on the grant of probate.
T McGibney
Registered User
- Messages
- 6,946
Innocent that I am, I was never aware that an executor's duties included having to submit to be interviewed at the Probate Office?
That would only be where the executor is making a personal application for Probate. When there is a solicitor acting, there is no interview.
mf
Isn't it the case that usually the solicitor fulfills this requirement of the probate process on behalf of the executors but if the executors do it without legal representation then they may (will?) have to attend themselves?
Edit: post crossed with @mf1's.
Curlywurly
Registered User
- Messages
- 66
And how do you think the Probate Office would know that the Executor is of unsound mind? Surely they would expect that the Solicitor who filed the application knows what he / she is doing and upholds the law.
Not sure how you are connected to this estate ie a beneficiary or a family member but you appear to be sure of the facts regarding the Executor’s mental capacity.
In any case the solicitor who lodged the application in the Probate Office is at fault here as despite being alerted by you to the fact that the Executor is of unsound mind he / she has allowed / enabled a person of unsound mind to swear / affirm an Oath of Executor before a Commissioner for Oaths or practicing solicitor stating that he understands the content of the Oath and among other duties will administer the estate of the deceased by paying the deceased’s just debts and the legacies bequeathed in the will etc
Surely this must be Illegal as a person of unsound mind cannot swear or affirm any legal document as surely they would not have the capacity to know what they are doing. The Law Society website has guidelines on swearing a document which states “swearing a document is similar to what a witness does in court”
Personally I think a complaint should be filed with the Law Society and The Probate Officer should also be informed of the position regarding the Executor being of unsound mind. That Grant of Probate should never have been applied for by the Solicitor for the Executor in the first place.
Yes, that was my question and you've articulated the concerns I've had about it. I was a close personal friend of the deceased and I am sure of the facts regarding the executor's mental capacity. I'm also sure that the solicitor knows the facts too, being very closely connected with the family.
However I don't have any skin in the game - the distribution of the estate doesn't affect me. I was concerned that my friend's wishes would be carried out and that there could be something underhand going on. Having seen the grant of probate and the will I'm reassured that their wishes were carried out even though, clearly, the manner in which it was handled can't have been legal.
Nice thoughts and kind, but I'd stay well away from it if I was you.