Good morning
Will of Testator appoints his wife sole as executor but “if she dies or is otherwise incapable of acting” he appoints his two children.
The same two children are the wife’s attorneys under a registered LPA.
Do they apply in their capacity as Attorneys for wife please or in their own right as substitute attorneys?
Many thanks
Deborah
It depends on whether the widow “is otherwise incapable of acting”.
If she is capable of acting, but does not want to do so, this does not trigger the appointment of the alternative executors. However, she could appoint the children to obtain an attorney grant and act on her behalf.
However, if the widow is incapable of acting (i.e. has lost capacity), the children would be entitled to a grant of probate in their own right.
The fact that there is a registered LPA in place does not mean that the widow is “incapable of acting”. If the attorneys under the LPA were to want to apply for a grant in that capacity, I believe they would need the consent of the Court of Protection to do so (but there is no need to consider this as the will makes provisions for such an eventuality).
Paul Saunders FCIB TEP
Independent Trust Consultant
Providing support and advice to fellow professionals
Thank you so much Paul. The widow has Alzheimer’s and Vascular Dementia and my client is in the process of obtaining a PA14 from her Doctor so is very much “incapable of acting”. So Attorneys will apply in their own right which is great news thank you.