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Appointment of executors and consideration of their capacity

Making a Will

It is often the case that the first Will a person makes in their lifetime is triggered by an event such as the birth of their first child, purchasing their first home or inheriting from a relative. It therefore often follows that the person preparing the Will, the Testator, does so when they are relatively young.

Whilst we would always encourage everyone to prepare a Will at such a stage in their life, it is rare, but not unheard of, that this Will would remain suitable throughout the Testator’s lifetime. We would therefore suggest conducting regular reviews of your Will, particularly around major life events. These reviews may result in no changes being made, but offer an invaluable opportunity to avoid complications after death.

Appointing Executors

One important factor in Will making is to assess the appointment of Executors.

When first making a Will, it is common for the Testator to appoint their parents, siblings, or friends as Executors. This is, of course, because these are likely to be the closest and most trusted people in the Testator’s life at the time. However, if this appointment is never changed, there is a risk that the Executors will predecease the Testator or lack capacity to administer the Estate due to their age or perhaps the onset of dementia. It is commonplace for a Testator to replace such Executors with younger individuals, such as their adult children or other family members, later in their lifetime.

If an Executorship appointment is not amended and the Testator dies without any living Executors, then it is possible to administer an Estate.

Under the laws of England & Wales the next in line to act if there is no Executor, would be the residuary beneficiary or beneficiaries of the Will. This could, of course, be entirely inappropriate in the circumstances and could cause conflict to arise within the family. This would also not align with the Testator’s wishes.

If the Executorship appointment is not amended and the Testator dies with one or more Executors without capacity to act as Executor then, again, it is possible to administer the Estate but again, it would not be conducted in accordance with the Testator’s wishes.

An Executor lacking mental capacity cannot apply for a Grant themselves. If there are other Executors appointed alongside the incapacitated Executor, then they may be in a position to proceed by reserving the incapacitated Executor’s power. However, if there are no other Executors or if the co-Executor is unwilling to act, then an application may be required to the Court to appoint an appropriate person or the incapacitated Executor’s Attorney may be able to act.

If the incapacitated Executor had prepared a Lasting or Enduring Power of Attorney, then their Attorney(s) may be entitled to take out a Grant on the Executor’s behalf. Again, this may not have been the Testator’s preference.

The Remedy

In order to avoid such issues arising, it is important to review a Will at regular intervals and, in particular, when important life events occur. If you have prepared a Will and wonder if it still meets your needs and wishes, please contact our dedicated team on 0118 958 9711 or email Charlotte Fox, one of our Private Client lawyers, who would be glad to assist you: [email protected].

Further Reading:

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Lockdown 2021

Business as usual in unusual times. We are continuing with all legal work during Lockdown 2021. We are still working hard on behalf of clients old and new. We are still conducting most meetings by telephone and/or via conferencing facilities. In particular we are pleased to continue to offer our fixed fee meetings of £95 inclusive of VAT for one hour, to enable clients to explore any new legal matter with which they are concerned.

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