Some very old Wills appointed the a firm partner as exec/trustee in the Will but in their personal capacity rather than the firm/directors. They have since retired, the residuary beneficiary has lost capacity and no POA so renunciation would be difficult unless you can advise me otherwise?
Is there a way to rectify this ? Can the retired executor appoint the firm by POA? Is there away to deal with all other wills like this going forward?
If the retired partner at your firm still has capacity he should be able to appoint an individual at the firm as a POA to deal with the deceased’s estate. You will need to send the original POA to the Probate Registry when submitting your application (although they will probably not send it back). You will also need to clear off any other executors appointed in the Will, in the usual way.
Will this be just one director?
Is there a way for him to do a blanket document to cover other Wills written in this way - a longshot i know.
The former partner solicitor who was appointed as Executor should have notified the testator prior to his/her retirement, so that the testator would have had the option to appoint another Executor, or better still more than one Executor.
In my view, when a solicitor accepts an Executorship there is a strong obligation on him/her to act as Executor wherever possible. For that reason I am reluctant to accept Executorships, especially when the testator is younger than I am.
The solicitor who has retired should now appoint an individual as attorney to apply for the Grant. He/ she has an obligation to the testator to ensure that the application for the Grant can proceed in the most cost-effective way.
Cliona O’Tuama
Solicitor
Your would need a separate POA for each Probate application.
As suggested by Cliona O’Tuama, perhaps you should now undertake an audit of your existing Wills and contact each of the testators where the retired partner is an executor to suggest they update their executors.
Thanks for your response. Yes, we are in the process of doing so, the wills are very old and it seemed to be the way they were drafted at that time. Unfortunately some testators may now lack the capacity to update the same.
If say the executor rennounced and the residuary beneficiary lacked capacity would it mean a court of protection application to obtain POA to deal with the estate under the NCPR.
@saraharundel If say the executor renounced and the residuary beneficiary lacked capacity would it mean a court of protection application to obtain a deputyship and then arrange for POA to deal with the estate under the NCPR.
@ClionaOTuama If say the executor renounced and the residuary beneficiary lacked capacity would it mean a court of protection application to obtain a deputyship and then arrange for POA to deal with the estate under the NCPR
In my view it would be wrong, I hesitate to say negligent, of the Executor to renounce when he knows that the residuary beneficiary lacks capacity. If the Executor had acted correctly before he retired this would not have happened, as the testator could have appointed an alternative Executor or Executors.
Cliona O’Tuama
Solicitor
In the international tax cases I deal with this could cause a crisis. There is an exemption from UK taxation of foreign trusts when the only connection is a UK professional trustee, including a lawyer. Once the lawyer retires that exemption fails.
It is the duty of every executor or trustee appointed in any will or trust that might now or in future have a foreign element to foresee this problem. Indeed, malpractice not to.