WE 4 & 5 - Unwilling to act

Question 1

What are the options if an executor is unwilling to act?

Answer 1

• Renunciation
• Reserving power
• Appointing an attorney

Question 2

How does an executor formally renounce their right?

Answer 2

• sign a form of renunciation (which is a deed).
• those applying for the grant must submit the form to the probate registry
• the renunciation will be noted on the grant
  -Renunciation is final, they cannot later change their mind without the court’s approval.

Question 3

When can’t an executor Renounce?

Answer 3

When they have intermeddled - taken steps to indicate that they have accepted their appointment.

Question 4

When considering when can’t an executor Renounce, is arranging a funeral Intermeddling?

Answer 4

No

Question 5

What is ‘Reserving Power’ by an executor?

Answer 5

• an executor who may want to act later can reserve the power.
• must be one other executor who does take out the grant of probate.
• other executor must give written notice that they will apply for probate
• to act later the executor can apply for a grant of double probate (if administration is not yet complete).

Question 6

What is required to ‘reserve power’ by an executor?

Answer 6

• no formal reservation.
• other executors must notify him in writing that they are applying for probate.
• grant will note the reservation.

Question 7

How is an attorney appointed by an executor?

Answer 7

After grant - PR may delegate for a max of 12 months.

Before grant - other executors apply for a grant of probate / attorney applies for letters of administration (with will) - attorney can’t apply for probate as he is not named on the will.

Question 8

What can an administrator do if they are unwilling to act?

Answer 8

• Renounce
• Appoint an attorney

ADMINSTRATORS CANNOT RESERVE POWER

Question 9

How does an administrator renunciate?

Answer 9

• A form of renunciation must be signed and submitted to the probate registry with the application for grant.
• Administrator may do so any time before grant is issued - INTERMEDDLING RULE DOES NOT APPLY.

Note: Executors who renounces their right to apply for grant do not automatically renounce their right to apply as an administrator.

Question 10

How does an administrator appoint an attorney?

Answer 10

After the administrator has been appointed under grant - the PR may delegate their functions. Notice given to other admins, max 12 months

Before a grant has been issued - The power to apply for grant can be delegated. The power of attorney must be provided to the probate registry as part of the application.