8 February 2019 by Veronica Ivanova

Choose the executor of your Will carefully or risk unwanted and potentially costly outcomes

At the time of signing your Will, the executors should have mental capacity, but what happens if one or all of your executors lose mental capacity either before or after your death?

The answer is complicated and will depend on when mental capacity was lost, how many executors were appointed and whether in addition to your Will, you had an Attorney appointed under a Property and Financial Affairs Lasting Power of Attorney (“PFALPA”).

A recent legal case confirmed, somewhat unusually, that if a sole executor loses capacity after the testator passes away, an attorney appointed under PFALPA would be able to act on their behalf, in the administration of their estate. This might not have been the deceased’s intended outcome and getting the Court to decide that was the right thing to do was very expensive and controversial.

Top tips in choosing an executor?

Due to the difficulties caused by an executor who lacks capacity, it is best to:

  • Appoint more than one person to administer your estate;
  • Try to appoint people who are younger and of good health;
  • Review your Will regularly, for instance, every 3 to 5 years;
  • Ensure that you update your Will as soon as possible after changes to your circumstances, or to those of your executors and/or beneficiaries.
What to do if an executor(s) loses capacity?

The best advice, given the complexity of this area of law, is to seek advice from a solicitor, but not necessarily the solicitor who drafted the Will.  Although in very general terms the best course of action is set out below:

  • If an executor loses capacity whilst the testator is still alive, the easiest solution is for the testator to choose another executor and amend their Will as soon as possible
  • If one of the executors loses capacity after the testator has passed away, the executor(s) who have the necessary capacity can administer the estate. However the Grant of Probate (the document that is obtained when someone dies) needs to be made with power being reserved to the executor lacking capacity, should their capacity recover during the estate administration. However, before arranging for power to be reserved, it may be necessary for the executors having mental capacity 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. The attorney is not obliged to act in the estate administration and if they choose to take on the role, this may cause further complications and disputes.
  • If one of the executors loses capacity after the testator dies and a Grant of Probate has been obtained, that Grant will be revoked and the executor(s) who still has/ve 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 the same. Any appointed attorney will have to be considered but they are not obliged to act as there are other executors appointed to act.
  • If a sole executor loses capacity after the testator passes away and a Grant of Probate has been obtained, the Grant will be revoked and any appointed attorney will 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.

For more information, feel free to contact anyone in our Wealth and Estate Planning teams who will be able to help.


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