The Non Contentious Probate Rules stateThank you this forum has been a great help to me and i appreciate all of the quick replies to the questions, if my relative and the other beneficiery who passed away in the 2003 will who would now carry out the role of executor in the 2003 will ?
If there is no one with Deputyship or Lasting/Enduring Power of Attorney the person to apply will be the person entitled to the residue of the estate, i.e. the bit of the 2003 will where it says 'and everything else to X' then X is the person to apply. If the residue goes to more than one person then any one of them can apply.NCPR SI 1987/2024 r 35 is now as follows:
''(1) Unless a district judge or registrar otherwise directs, no grant shall be made under this rule unless all persons entitled in the same degree as the person who lacks capacity within the meaning of the Mental Capacity Act 2005 referred to in paragraph (2) below have been cleared off.
(2) Where a district judge or registrar is satisfied that a person entitled to a grant is a person who lacks capacity within the meaning of the Mental Capacity Act 2005 to manage his affairs, administration for his use and benefit, limited until further representation be granted or in such other way as the district judge or registrar may direct, may be granted in the following order of priority—
(a) to the person authorised by the Court of Protection to apply for a grant;
(b) where there is no person so authorised, to the lawful attorney of the person who lacks capacity within the meaning of the Mental Capacity Act 2005 acting under a registered enduring power of attorney or lasting power of attorney;
(c) where there is no such attorney entitled to act, or if the attorney shall renounce administration for the use and benefit of the person who lacks capacity within the meaning of the Mental Capacity Act 2005, to the person entitled to the residuary estate of the deceased.
I would suggest that whoever generally looks after your relative's affairs should take some competent legal advice. Personally I would steer clear of the firm who are trying to use the 2015 draft will.