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Is your Executor who you think they are - is your Will worded correctly?

The importance of the wording of your Will when appointing an Executor: how your Executor’s Enduring Power of Attorney can have an impact on your Will.

Word your Will so that only a person chosen by you distributes your Estate

It is important when you appoint an Executor of your Will that the clause appointing that person allows for all of the below circumstances:

  • If the Executor passes away (a poorly drafted Will only covers this point); and
  • If the Executor loses capacity (examples of this can include brain damage or other neurological issues); and
  • If the Executor is unwilling to act as Executor (this may be for many reasons, including grief, individual circumstances, or change of mind).

If your Executor loses capacity, there is a risk that your estate may be distributed by the person acting as your Executor’s Attorney under an Enduring Power of Attorney.  The result of this is that someone unknown to you might be the person who distributes your estate.

For example:

Jane Smith signs her Will which appoints her close friend John Doe as the Executor of her Will.

The clause appointing John reads “I appoint John Doe as my Executor if he survives me”.  The clause is silent regarding if John loses capacity or is unwilling to act.

John is in a car accident 2 months later and, as a result, has a severe brain injury. John’s doctor deems him to have lost capacity.

John has appointed his cousin Edmund as Attorney under an Enduring Power of Attorney. Under John’s Enduring Power of Attorney, Edmund is able to make decisions on behalf of John in all matters, including Jane Smith’s Will.

Jane Smith passes away some time later. Edmund is still making decisions for John as he has sadly not regained his capacity.

Jane’s family are now reliant on Edmund, whom Jane did not know personally, to distribute Jane’s estate.

To Prevent this Problem

A useful tip is to appoint an alternate Executor in cases where any of the above three circumstances occurs. This ensures that your estate is in the hands of a trusted alternate Executor, rather than distributed by the Public Trustee (which has the potential to be costly and time consuming) or your Executor’s Attorney.

Article posted 4 April 2018

This document offers general information only and should not be relied upon as legal advice under any circumstance.  Please contact your solicitor for clarification on any areas.

Executor: the person you choose to ensure the wishes within your Will are followed. An Executor will collect your assets, pay any relevant debts and distribute the remainder of your estate. This person can also be a Beneficiary, meaning that they can both ensure your estate is distributed in line with your wishes, and if you choose, may also receive gifts from your estate.

Beneficiary: is someone who you choose to gift either all or part of your estate to upon your passing. To receive the gift under your Will, the individual must survive you by a minimum of 30 days.