The situation
They had been married for over fifty years.
In 1981, the husband made a will. It was simple: everything to his wife, and she would be the executor. At the time, it made perfect sense. She was capable, trusted, and the obvious choice.
Decades passed. By the time the husband died in 2012, his wife was 87 years old and living in a nursing home in Queensland. She had dementia. She could no longer manage her own affairs — let alone administer someone else’s estate.
The will still named her as sole executor. But she was no longer able to act.
The will was decades old, and no one had thought to update it as circumstances changed.
What went wrong
The son wanted to help. His mother had signed an Enduring Power of Attorney (EPA) back in 2005, appointing both her husband and her son to act on her behalf if she ever lost capacity.
An EPA is a legal document that allows someone you trust — your “attorney” — to make financial and legal decisions for you if you become unable to make them yourself. Unlike an ordinary power of attorney, an EPA continues to operate even after you lose mental capacity. That’s the point of it.
The son assumed the EPA would allow him to step into his mother’s shoes and act as executor of his father’s estate. But the court said no — not automatically.
The EPA gave him authority over his mother’s affairs. It didn’t specifically authorise him to take on the role of personal representative for someone else’s estate.
The impact
The estate was frozen. The son couldn’t access his father’s assets, pay any debts, or distribute anything — because no one had legal authority to act.
It wasn’t anyone’s fault. No one had done anything wrong. But the will was decades old, and no one had thought to update it as circumstances changed.
What should have been a straightforward inheritance became a legal puzzle that required the Supreme Court to resolve.
Red Flag: No Substitute Executor
A will made in 1981 named a sole executor who became incapacitated by 2012. No backup executor was named, forcing a court application.
The outcome
The son applied to the Supreme Court of South Australia under Rule 44 of the Probate Rules 2004 (SA), which sets out who can apply for a grant when the named executor is incapable.
The court accepted that the wife was suffering from dementia and could not act. It then considered who was entitled to apply in her place.
Because the son would have been entitled to apply for a grant if his mother had died without a will, the court found he was entitled to apply on her behalf. He was granted authority to administer his father’s estate for his mother’s benefit.
The estate could finally be dealt with — but only after a court application, legal advice, and the kind of delay no one had anticipated.
What could have helped
This situation could have been avoided with a simple change to the original will: naming a substitute executor.
Better Approach: Name a Substitute Executor
A well-drafted will appoints a backup executor and is reviewed regularly. One clause naming a substitute can prevent months of delay and thousands in legal costs.
A well-drafted will doesn’t just appoint an executor — it also names a backup in case the first choice is unable or unwilling to act. That one clause can prevent months of delay and thousands of dollars in legal costs.
It also helps to review your will every few years — especially after major life events like retirement, illness, or a move into care. A will made in 1981 may not reflect the reality of 2012.
What is an Enduring Power of Attorney?
An Enduring Power of Attorney (EPA) is a legal document that lets you appoint someone to manage your financial and legal affairs if you lose the capacity to do so yourself.
Unlike an ordinary power of attorney — which stops working the moment you lose capacity — an EPA is designed to keep working precisely when you need it most.
But an EPA has limits. It covers your affairs, not someone else’s. If you’re named as executor in another person’s will, your EPA may not automatically allow your attorney to take over that role. The rules vary by state, and the wording of the EPA matters.
If you’re making a will and considering who to appoint as executor, it’s worth thinking about what happens if that person becomes unwell. A substitute executor — or a professional executor — can save your family from having to go to court.
Why this matters
No one plans to lose capacity. But it happens — through illness, accident, or simply age.
When an executor can no longer act, the estate can’t move forward without court involvement. That means delay, cost, and stress for the people left behind.
A well-prepared will, reviewed regularly, can prevent this. So can a conversation with your chosen executor — and a backup plan if they’re ever unable to serve.