I have an application where one of the Executors is the deceased’s former spouse, the divorce having taken place several years after the Will was executed. The appointment is therefore revoked.
I am unsure how to reflect this in the online probate application. The options under “why aren’t they applying” do not include this scenario.
How have others approached this?
Is the person actually named or only described as the deceased’s spouse? In the latter case if she is divorced or dead at the date of death she was never appointed. If she is named then surely there may be an automatic revocation of her appointment. Normally if she declines to prove, ideally without power reserved, you are off into citation and/or removing, substituting or passing over her as PR. Before grant the court has power under s116 SCA 1981 or s50 AJA 1985 before or after grant. How the court will exercise its discretion is laid down in case law. If she is also named as trustee she would need to be removed under s41 TA 1925 unless she agrees to retire.
But there is s.18A WA 1837 which treats her as having died on the decree absolute date, subject only to contrary intention in the Will. In the absence of that, the appointment is as if she were actually dead. That is, she is not an executor for probate purposes! I was not a probate practitioner for most of my career, as I ceased to want to undertake reserved activities, but no doubt you will need to clear her off by disclosing the decree.
The provision does not apply to her trustee role if she has that as well.
Jack Harper
Jack - I think it is a case of automatic revocation but the probate application requires you to tick one of reasons A to F as to why the executor named in the will is not proving. None cover a divorce and there is no reason “Other”.
It’s less a question of law and more a question of how to negotiate the badly designed form.
That’s exactly it Andrew - the very inflexible form does not really allow for this scenario. At the moment I have selected “they died before the deceased” and explained the situation in the additional information, but it seems odd to ask the remaining Executor to sign a statement incorrectly claiming the other Executor is dead.
Emma, it is not odd at all. Parliament can by statute do the bizarre and perhaps the impossible. As a tax practitioner I have seen many cases of tax statutes which deem factual reality to be either ignored or to be flatly reversed. I was told at University that it might not pass a statute which affected only people with red hair, sed quaere; who would challenge the validity of one which gave them a Winter Fuel Allowance?
The effect of s18A (1) where it applies is precisely that statute law requires a divorced spouse for the limited purposes there specified to indeed be regarded as having died on the date of decree absolute, So for those purposes she is no more, she has fallen off her perch, she has predeceased, like the Norwegian Blue.
I defer to Andrew on the procedural point but what you have ticked Emma is statutorily correct. Andrew and others may say whether further disclosure to the Probate Service is required or prudent to avoid a stop but you probably have 9 months to find out or whatever is the current response delay on which Patrick Moroney is my regular guide on this Forum.
Jack Harper