I have come across a historic matter which i may or may not be able to help with. Lady dies in 2004, appointing her son (A) as sole executor and trustee. There is a substitute, but A was alive and had capacity at date of death and so A has taken out a Grant. however, the property remains in the deceased’s name (and is unregistered). Nothing else left in the estate to be dealt with. There is a life interest over the property in favour of my client.
All good so far…apart from the fact that A no longer has capacity. Clients are anxious to tidy this up.
The beneficiaries of the “Will Trust” are my client as life tenant, with A and another sharing the remainder.
Is the only recourse and application to the Court under s41 TA?
Thanks
Haven’t you got two issues here. The first is that the executor has lost capacity without completing the administration of the estate (by transferring the assets to the trust). Therefore the grant will have to be revoked and a grant of letters of administration (with Will) substituted. The second is that the trustee of the trust has lost capacity and there I think you will have to make a s 41 application assuming at least that the terms of the Will do not actually appoint A and B as executors and trustees. If so then if B is around he/she may still be a trustee even though he/she has not proved the Will, if the Will does not specify obtaining probate as the qualifier to be a trustee.