I would really value some comment on this scenario:
A dies and A’s will appoints spouse, B, as executor, and children C, D and E as substitute executors. B obtains a grant of probate for A’s estate. B then dies. B’s will appoints spouse A as executor, and children C, D and E as substitute executors.
If C obtains the grant of probate to administer B’s estate, my understanding is that C will also have the authority to act as executor for A’s estate. The ‘chain of representation’ is unbroken. Is this correct - even though A had substitute executors who could apply for a further grant in respect of A’s estate?
Secondly, does B have authority to act as the executor of A’s estate before the grant is issued to A in respect of B’s estate?
Mindful that the usual wording is that substitute executors are entitled to a grant only if the initial named executor (B in this case) is unable or unwilling to take a grant, I believe that their right to a grant of probate is extinguished as soon as a grant is issued to the initial executor.
Yes, if C obtains probate to the will of B, they will be executor of A by chain of representation.
With regard to C acting in the estate of A before probate to the will of B is issued to them, as a will speaks from death I understand they will have such authority. However, until the grant is issued how can C evidence their authority without revealing the contents of B’s will to those involved in the estate of A, which may likely represent a breach of confidentiality rules (or even GDPR). This assumes that whoever C is in contact with understands the principle of the chain of representation.
In summary, I would be wary of C seeking to deal with third parties in relation to the estate of A before the issue of probate to B’s will. I would be less concerned about them exercising the powers or discretions in relation to the estate of A, e.g. the power of appropriation.
Paul Saunders FCIB TEP
Independent Trust Consultant
Providing support and advice to fellow professionals