Examination Timing: 00H01M27S
By his will, a testator appointed his spouse, his friend, and his adult son to be his executors. The testator and his wife divorced after the will was executed. The testator has now died. The son predeceased the testator and a grant of probate to the son’s estate was obtained by his nephew. The testator left all of his estate to his niece who is 20 years of age. Who has the best right to apply for a grant of representation to the testator’s estate?
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When an executor dies before the testator, their role as executor lapses. Additionally, upon divorce, a former spouse is typically treated as having predeceased the testator for the purposes of the will. Therefore, the remaining executor, the testator’s friend, has the best right to apply for a grant of representation. The nephew of the deceased son does not have a right to the grant as his uncle (the testator) did not explicitly name him as an executor, and the niece is a beneficiary but not an executor.
Key Point: Divorce revokes the appointment of a former spouse as an executor, and a predeceased executor’s rights do not pass to their personal representatives unless explicitly stated in the will.
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