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Joshua
Joshua, Lawyer
Category: Law
Satisfied Customers: 26069
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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Can a mentally incapable executor's court appointed Deputy

Customer Question

Can a mentally incapable executor's court appointed Deputy apply for a Grant of Probate on his behalf (limited) as a person authorised by the court (assuming other executors cleared off under NCPR rule 35) without a further application to the court of protection?
Submitted: 2 years ago.
Category: Law
Expert:  Joshua replied 2 years ago.
Hello and thank you for your question. I will be very pleased to assist you. I'm a practising lawyer in England with over 10 years experience. May I clarify if the deputyship order includes a specific authority for the deputy to take the grant of probate please? I am not sure that it does from what you say but could you confirm?
Customer: replied 2 years ago.

Many thanks. I do not have a copy with me so I will check and come back to you as soon as I can. It may take a couple of days.

Expert:  Joshua replied 2 years ago.
Thats absolutely fine. Would you like me to explain the position in the meantime so you know how to proceed when you can lay hands on the order?
Customer: replied 2 years ago.
Yes please
Expert:  Joshua replied 2 years ago.
Thanks. If a deputy wishes to act as executor, the deputy will need to ensure that his deputyship order issued by the Court of Protection specifically includes an authority for the deputy to take the grant of probate for the use and benefit of the person who is mentally incapable. If the order does not include such a provision then the deputy will need to make a further application to the court of protection for an order to allow the deputy to take a grant on the patient's behalf. If the order already contains such a provision then there is no need to return to the COP with a further application. Where there is another executor who has capacity but is unwilling or does not wish to apply for a grant of probate the deputy will need to satisfy the conditions set out in rule 35 of the NCPR 1987 which you refer to. Rule 35 as you know I think states that unless a registrar otherwise directs, no grant shall be made to a deputy unless all persons entitled in the same degree as the incapable person have been cleared off. So the deputy will first have to clear off any other executors before applying for a grant himself. If the deputy finds that the eputyship order includes no authority as per first paragraph above, then it would be wise to ensure that other executors can be cleared off first before the deputy goes to the time and trouble of applying for a further order or there is a danger he does so only to find another executor acts and the order is useless. I hope the above is of assistance? If you have no further questions for now I should be very grateful if you would kindly take a moment to click to rate my service to you today or just reply back to let me know if the above is helpful. Your feedback is important to me. If there is anything else I can help with please reply back to me I'd be very grateful
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Customer: replied 2 years ago.
Thanks very much for your comprehensive reply which tells me all I need to know.
Expert:  Joshua replied 2 years ago.
A pleasure - I am glad I was able to assist.