Two Executors, one without capacity but has appointed POA

[SarnieVee]

Hello, my first post here. Thank you for reading.

I am writing on behalf of my partner. He is Attorney for his father who has been diagnosed with Alzheimer's and does not have the capacity to make decisions regarding his finances. He is currently in a care home.

My partner's father's wife (stepmother) died in May this year. She has two children both adults. The deceased made her husband and her daughter executors of her will. Her husband lacks capacity, as explained above.

Should both executors have a copy of the will? Should the will be made available to my partner as he has POA for his father?

They have a property that needs to be sold to pay for care fees and they held the property as tenants in common.

There is fractured communication between the step-siblings, and animosity has existed since their parents married 26 years ago.

The deceased's daughter has instructed a solicitor to apply for probate and they have asked that the deceased's husband visit their office which is not possible as he is very frail and doesn't understand what is going on. The solicitor has requested that my partner provide evidence to prove his father lacks capacity, a letter from his father requesting a copy of the will be made available and the usual AML ID documentation for them both, also a letter from my partner's father's GP confirming his diagnosis.

We have all of the requested information, but the solicitor has said they are only going to release the original will with no copies to the executors. We know that the deceased's daughter will not share a copy of her mother's will with my partner or his father.

My question is, is my partner's father as executor, legally entitled to a copy of the Will?

I hope the above makes sense and thank you for taking the time to read and respond.

[dslippy]

The power of attorney should not extend to an executorship. The will will become a public document when probate is granted to the remaining executor.
It may be that the attorney should ask for a copy of the will to double check the terms of the appointment.

[SarnieVee]

Thank you. But shouldn't the Will be provided to both executors, even though one has lost capacity?

[dslippy]

It is common for wills to provide alternatives.

There is a bit of latin 'delegatus non potest delegare' - a delegate (here the executor) cannot delegate his duties.

The will speaks from the date of death./ If the executor does not then have capacity, a court will not confirm it.

[Chipchap]

The solicitor involved acts to the instruction of the executor. The solicitor will advise the executor, but the responsibility for any action lies with the executor.

It seems to me many solicitors overstep the mark and assume control of the whole process, which is not appropriate, unless they have been named as an executor.