Grant of Confirmation

edn_mc1

This thread has been an invaluable source of information and thanks to everyone here I have been able to fill in most of the C1, but I can't find anyone with the same circumstances. What do I write in the declaration if the first choice executor has lost the capacity to act?

I am the niece trying to obtain confirmation for my uncle's estate. My aunt is the executor named in the Will, and I am the substitute (whom failing for any reason) executor named. There are no other executors.

Shortly after my uncle passed away, my aunt began to deteriorate and was unable to care for herself any longer. After she was assessed by a doctor and declared incapacitated, the Power of Attorney (already granted when she made her Will) was registered and brought into effect. I am her Power of Attorney.

I read that the Power of Attorney can apply for confirmation on behalf of the incapacitated executor, but what happens if the Power of Attorney is also named as the substitute executor in the Will?

Do I apply for confirmation as executor nominate, or do I apply as the Power of Attorney on her behalf, and do I have to docquette and send the Power of Attorney Certificate to prove she is incapacitated? 

If I am applying as executor nominate do I also have to state that she is the wife of the deceased and that I am her niece and Power of Attorney?

Can anyone help, thanks.

buddy9

Previously it was considered that a UK-based power of attorney could not apply for confirmation on behalf of an incapax executor, although an attorney could decline the executor appointment on behalf of the executor, providing that the POA included powers to this effect.

However there have been two shrieval decisions that have taken a different approach. But I do not know whether this has altered the approach of court staff.

Perhaps the easiest option is to provide a medical certificate and use a declaration style like below:

That I am

the niece and executor nominate of the said deceased conform to will dated [date].  [Name and address of wife], the wife of the said deceased who was appointed executor nominate primo loco, survived the said deceased but has lost capacity without expeding confirmation, conform to medical certificate dated [date]. Said will and medical certificate are produced herewith, signed and docquetted as relative hereto.

edn_mc1

Thank you very much buddy 9, your help is much appreciated.

I was given a letter from my aunt's doctor to take to the solicitor, they then sent the letter to the Office of Public Guardian to register the Power of Attorney. I was given the doctor's letter back and this is the only medical document I have. Can I send this, as I don't have a medical certificate?

Thanks again.

buddy9

If the doctor uses the word certify then it might be described as a certificate. Otherwise, you might have to use an appropriate description such as 'medical assessment letter'.

edn_mc1

Thank you again buddy9, your contribution to this thread has been invaluable, and without your help I would not have been able to complete the C1 form.

motherwellshot

In respect of the Minute of Declinature. I am listed as reserve executor., the main executor does want to undertake the role of executor. I submitted a C1 to the Sheriff Court yesterday but this was declined. The Clerk specified I needed a Codicil to document the main executor declining. I think she meant a Minute of Declinature. 

Question - is there a suitable wording for a declinature, or does this needs to be drafted by a solicitor?

motherwellshot

Sorry, typo. The main executor does NOT want to undertake their duties as executor.

buddy9

There is an example here:

https://forums.moneysavingexpert.com/discussion/comment/80034487

motherwellshot

Thank you Buddy, most appreciative of your response. One final question, on Box 10 of the C1 - Full name and address of each executor, shall I still include the original executor and my details, or do I omit their details referencing the Minute of Declinature in my signed declaration Part 2. That I am.........

Many thanks

buddy9

In box 10 only enter details of acting executor, nothing else.