Do your Executors have to act?
Your Executors are not under any obligation to take on the role. Even if you appoint only one Executor, they will still have the option to stand down if they are unwilling or unable to fulfil their duties when the time comes. If this is the case, it will become necessary for someone else to apply to the court as an administrator.
There are any number of reasons why an appointed Executor might not wish to act. For example:
they have simply changed their mind;
they didn’t know they had been appointed in the Will (that happens!);
they have moved away, perhaps overseas;
they have become ill or disabled;
they now have responsibilities as a carer for someone who is ill or disabled; or
they were appointed in a professional capacity, such as a solicitor, but have retired from practice.
So just because the will names a person as Executor, it does not mean that that person has to act as an Executor. If they are choosing to step down, they can renounce the role.
To do so they will need to complete a ‘form of renunciation’, available from the Probate Registry (which is responsible for issuing grants of probate and grants of letters of administration).
In the event that your Executor chooses to renounce their position, renunciation takes effect immediately. Renunciation does not grant them the right to appoint another person in their place.
The Executor is not able to act
Obviously there may be circumstances where an Executor is not able to act:
The named Executor died before the testator, but the testator did not amend their Will.
They were the spouse or civil partner of the testator when the Will was drafted, but the marriage or partnership has since been dissolved or annulled (this automatically revokes the appointment).
They do not have the mental capacity to act.
Their right to act has been taken away by the court (for example if they have disappeared, or are serving a prison sentence).
If you appointed a sole Executor and they die before you without you appointing someone else in their place, your estate will be administered by the person first entitled under the rules of intestacy. This does not mean that your Will is invalid, or that you will be deemed to have died intestate, just that the person who will act as your personal representative (in effect your executor) may not be the person you would have chosen.
If a person no longer has mental capacity to act as Executor when you die, then the other Executors (if any) can act; if there are no other Executors, then the law sets out how someone else would be able to apply for probate.
How to ensure you get the Executors you want
You cannot guarantee when you make your Will that the people you nominate as Executors will be able and available to be your Executors when you die.
Obviously it is a good idea for you to change your Will if you discover that one of your Executors does not wish to act or is unable to do so. But sometimes you may not be aware until it is too late. So it’s clearly a good idea to:
appoint more than one Executor;
make sure they know you want to appoint them as Executor;
check every so often that they are still willing and able to act; and
appoint substitute Executors.
Changing an Executor
If you need to amend your appointment of Executors in your Will, you can do so by making a simple codicil. You may wish to take someone off and replace them with someone else or add another Executor, appoint substitute Executors, etc.
All of these things can be done in a codicil which you just need to sign in the same way as you signed your Will (i.e. in the presence of two independent adult witnesses who should also sign and insert their names, addresses and occupations).
Or you can make a new Will. It is good practice to consider whether your circumstances have changed whenever you are thinking of making a small change, so looking at all elements of your Will and bringing it up to date will often make more sense than using a codicil.
Removing an Executor
The removal of an Executor is different from an Executor choosing to stand down.
Whereas the latter is a voluntary decision, the removal of an Executor is a court process instigated by someone other than the Executor. It may be that a beneficiary questions the Executor’s actions or alleges that they are not performing their duties correctly.
Once an application to court has been made, a decision will be made as to whether or not to remove the Executor, and whether a substitute will be appointed to take their place. An attempt to remove an Executor is not an easy application. There must be proof of serious misbehaviour on the Executor’s part before the court will even consider removing them. Generally, it needs to be shown that the Executor is:
incapable of performing his duties; and
unsuitable for the position.
Court processes can be time-consuming and costly for those involved. It is therefore important to consider carefully who you would like to name as your Executors in the first place, and to consult with them before formalising it in your Will. Doing so may help to avoid future disputes and ensure that whoever you choose to be your Executors do in fact end up administering your estate.
Your choice of Executors when you make your Will is entirely your own but you may feel that by appointing a professional Executor you can limit some of the risks outlined above.
Executors who lose capacity
Whittaker v Hancock [2019]
The scope of a finance and property LPA is wide, and depends on the capacity of the attorney. It was not restricted so as to prevent the attorney from carrying out the functions of personal representative where the donor of the LPA had lost capacity to do so. It was relevant that the donor was the sole beneficiary of the will she was administering - implying that it therefore came within the province of her own "property and financial affairs."