What happens in the case where an executor has predeceased the testator and the testator is now incapable to appoint a new executor as he has lost the mental capacity to make this decision…
Sehrish Mir
Stilwell & Singleton
Two options - either an application is made for a statutory codicil to appoint a new executor (I have done this - very quickly dealt with by the Court). THis is expensive, though.
Ultimately, the residuary beneficiaries will be able to take a grant of letters of administration with Will annexed on the basis that they are the residuary legatees and devisees in trust.
Damian Lines
Rubin Lewis O’Brien
Where there is no named executor or an executor incapable of acting one of the residuary beneficiaries may apply for a grant of letters of administration with the will annexed.
Mrs J E Bennell
RLK SOLICITORS LTD
Rule 20, Non-Contentious Probate Court Rules 1987 applies:
Order of priority for grant where deceased left a will
- Where the deceased died on or after 1 January 1926 the person or persons entitled to a grant in respect of a will shall be determined in accordance with the following order of priority, namely—
(a) the executor (but subject to rule 36(4)(d) below);
(b )any residuary legatee or devisee holding in trust for any other person;
© any other residuary legatee or devisee (including one for life) or where the residue is not wholly disposed of by the will, any person entitled to share in the undisposed of residue (including the Treasury Solicitor when claiming bona vacantia on behalf of the Crown), provided that—
(i) unless a registrar otherwise directs, a residuary legatee or devisee whose legacy or devise is vested in interest shall be preferred to one entitled on the happening of a contingency, and
(ii) where the residue is not in terms wholly disposed of, the registrar may, if he is satisfied that the testator has nevertheless disposed of the whole or substantially the whole of the known estate, allow a grant to be made to any legatee or devisee entitled to, or to share in, the estate so disposed of, without regard to the persons entitled to share in any residue not disposed of by the will;
(d) the personal representative of any residuary legatee or devisee (but not one for life, or one holding in trust for any other person), or of any person entitled to share in any residue not disposed of by the will;
(e) any other legatee or devisee (including one for life or one holding in trust for any other person) or any creditor of the deceased, provided that, unless a registrar otherwise directs, a legatee or devisee whose legacy or devise is vested in interest shall be preferred to one entitled on the happening of a contingency;
(f) the personal representative of any other legatee or devisee (but not one for life or one holding in trust for any other person) or of any creditor of the deceased.
Paul Saunders