Executor lost capacity during administration period

The deceased died 4 years ago, appointing her three children as executors. Two of them took the grant, with power reserved to the other. The estate administration is complete, but for the sale of the property which remains in the estate and has been sold STC. Since obtaining probate, one of the proving executors has lost capacity. Can the remaining executor act alone in the sale? If not, can an attorney or deputy of the incapacitated executor act on her behalf? In either case, must recourse to the probate court be made?

Erika Whitfield
Adlams LLP

or an executor with power reserved in the original application can step in and take a full Grant of double probate.
I note no-one has answered your post but not sure why.

I’m not sure but my understanding is as follows:

  1. The remaining executor cannot act alone on the sale. A conveyance of land requires the agreement of all executors to whom the grant of probate was made.
    AEA 1925 s 2(2).

  2. An attorney (whether LPA, EPA or ordinary) for an executor can only act alone as an executor, not with another existing executor as seems to be the case here.

Malcolm Finney

Thank you Malcolm. I think there may have been a problem with the posting at the time, perhaps accounting for the lack of replies. The top part of your reply was also missing and I am wondering if it contains your suggestion as to the way forward. Would you be kind enough to re-post your reply.

Erika Whitfield
Adlams LLP

I’m sorry I don’t have a copy/record of my post and I can’t recall how I opened the reply.

My only thought is therefore for any executor who reserved power to now become involved.

Malcolm Finney