Executor without capacity

I am about to apply for Probate in an estate where the Testator appointed two of her nieces as Executors. One of them has dementia and will obviously not be capable of applying for the Grant. The other Executor will apply for the Grant, reserving the rights of the incapable Executor. The incapable Executor had granted an LPA to her son.

My query is how do I satisfy the provision that the Executor whose rights are being reserved has to receive notice of the application? Under Rule 27 (3) of the NCPR a registrar may dispense with the giving of such notice. Can I simply refer in the Statement of Truth to the fact that the Executor is incapable, as one would in a recital in a deed to remove an incapable trustee, or do I need to contact the District Registrar in advance to seek formal dispensation, sending a copy of the registered LPA?

I tried to telephone my usual DPR about this but received the usual response that the lines are busy.

I would welcome any practical experience about this from colleagues.

Cliona O’Tuama

In general, a valid notice doesn’t require that the recipient is capable of comprehending it. You might give notice to the incapable executor’s attorney, and ask for a receipt confirming her incapacity
and the fact that the recipient has power of attorney. Alternatively send the notice in a recorded delivery letter to the incapable executor’s last known address.

I have a feeling that this is ripe for challenge on human rights/disability discrimination grounds but I think it is at present an established practice, for instance in relation to severance of a
joint tenancy, and as such I think it is sufficient for you to make your probate application.

If you feel that this is too risky I think you have to apply for dispensation. You can apply for it in the oath but when I did this last year I was required to file evidence. In that case the manager
of the care home wrote a letter which was accepted.

Tim Gibbons

I have a similar case and furnished a medical assessment by the patient’s general practitioner (obtainable for a small fee)
The probate registry seems to have accepted that and have raised another unrelated query.
John Crowhurst
Taylors Solicitors