Who can act in place of an incapable executor?
Reasons to choose Wilson Browne
Where a will names a person as an executor but that person loses capacity, they can no longer act as an executor.
Any substitute executors named within the will would take the place of that executor. However, if there are no substitute executors or those executors are unable or unwilling to act, who can act in place of the incapacitated executor?
Attorney under an LPA or registered EPA
Rule 35 of the Non-Contentious Probate Rules 1987 allows a grant of representation of letters of administration with will annexed to be made to an attorney of an LPA or registered EPA on behalf of the donor (person to which the LPA/EPA relates), only when all other persons have been ‘cleared off’.
To be ‘cleared off’ means there must be no other person within the order of priority in the same degree as the donor or those persons who have renounced their ability to act. Rule 20 gives the order of priority and it starts with executors then beneficiaries and so forth.
The case of Whittaker v Hancock in 2018 discussed whether an attorney under an LPA can act in place of an executor. In that case, the donor was the sole executor and sole beneficiary. The Court stated in these circumstances an attorney can act in place of the incapable executor as it falls within the remit of handling the property and financial affairs of the donor. The LPA in this case was also general in its application and had no restrictions to prevent the attorney acting as executor.
If it is satisfied that the attorney could act in the place of the incapable executor, an application for grant of representation would need to be made. The attorney is required to give notice to the Court of Protection of their intention to make such an application, and cannot proceed to apply until the Court acknowledges the notification. The grant is usually limited for the use and benefit of the donor and until any further grant of representation is applied for.
Where a grant of probate has already been given to an executor and they subsequently become incapable, the attorney may be able to apply for a new grant. If the incapable executor was the sole personal representative the original grant of probate is not revoked – a new grant can be applied for by someone equally entitled under rule 20 or the attorney under rule 35. The new grant may be issued under the LPA as a grant de bonis non for use and benefit of the personal representative.
Deputy appointed by the Court of Protection
A deputy can only act in the place of the incapable executor if the Court of Protection order appointing them expressly gives them authority. The original order of appointment will not usually authorise this and authority must be sought from the Court.
Rule 35 does permit a grant to be made to the deputy where persons entitled to a grant in the same degree as the incapable executor have been cleared off, as above. The rule further states where a person lacks capacity, letters of administration for the use and benefit of the incapable may be granted to a person authorised by the Court of Protection.
If the order does not give authority, an application to the Court can be made under part 9 of the Court of Protection rules and may be suitable for the short procedure in Practice Direction 9D.
The Court is only likely to grant authority to the deputy where the incapable executor has a beneficial interest in the estate, or they are the only person entitled to a grant of letters of administration or under intestacy. If there is another possible executor, they must have renounced their right to a grant for the deputy to be able to act.