10. Administration: Rights of Beneficiaries and Liabilities of PRs Flashcards
How can a beneficiary prevent the issue of a grant to an executor / administrator?
- lodging a caveat at HMCTS (no grant can be issued until it has been removed)
- Lasts for 6 months
If someone wants to apply to obtain a grant which is subject to a caveat - what should they do?
If someone applies for the grant, they can issue a ‘warning’ to the caveator, requiring them to ‘enter an appearance’ within 14 days setting out their interest, if they do not, the applicant can remove the caveat
Beneficiaries powers to force someone to obtain the grant
The beneficiaries may apply to HMCTS to issue a ‘citation’, forcing a party with a right to the grant (PRs) to act (beneficiary = citor)
- citation to take probate:
- Citation to propound Will:
- Citation to accept or refuse a grant
Citation to take probate: when is this used?
Used when: executor has lost his right to renounce probate by intermeddling in the estate (eg. selling the deceased’s chattels) but has not applied for a grant of probate
Outcome of a citation to take probate
After the citation, the executor must proceed with the application, and if he does not, the citor can apply for a court order allowing the executor to be passed over and a grant of letters of administration with will annexed to be issued to persons entitled under NCPR 1987, r 20
Citation to propound will: when is this used?
Used when: A person becomes aware there may be a will which would diminish their entitlement under an earlier will or intestacy
- Outcome: That person can ‘cite’ the executors named in the later will and any persons interested under that will to propound it. If citees fail to enter an appearance or propound the will, citor can apply to the court for an order for a grant ‘as if the will were invalid’
Citation to accept or refuse a grant: when is it used and what is the outcome
Used When: If someone wants to ‘clear off’ a person with a prior right to any type of grant who has not applied for a grant and shows no intention of doing so
Outcome: If the person cited does not take step to take out the grant, it can be issued to the citor
Aside from issuing a citation, what else can beneficiaries do if someone is unwilling to administer the estate?
PASSING OVER
Used when: If a person is unwilling to act as an executor, an individual can apply to the court under s 116 Senior Courts Act 1981 for an order passing them over in favour of someone else
Options for a beneficiary who wants to compel due administration of the estate
- Exercise right to inspect accounts and apply to court if the PRs do not comply
- Ask PRs to disclose reasons behind their deliberations and if they refuse apply to the court
- Bring administration proceeds (general admin order) in the court - largely last resort
Direct actions beneficiaries can bring against PRs
- Breaches of fiduciary duties
- Devastavit Claim
- Breach of trust (tracing claims)
Time limits for personal and proprietary claims against PRs
12 years
When is devastavit claim used
Beneficiaries can bring a devastavit claim where a PR has caused the estate to suffer loss due to their breach of duty. If PRs are liable, they must pay from their own resources
Defences to a devastavit claim
- s 61 Trustee Act (good faith)
- exclusion clause in will
- acquiescence of Bs
- Protection against unknown or missing claimants
- limitation
Limitation periods for devastavit claims
12 years running from the date on which the beneficiary’s right to receive the estate accrued
- NO time limit for actions for fraudulent breaches of duty or when PR takes estate property for PERSONAL USE
Rights of creditors if the PRs do not fulfil deceased’s debt obligations
PRs take in the debts and liabilities of the deceased and therefore, causes of action for such can be made against the PRs, and the PRs must perform the deceased’s contract
- no personal liability, liable only to the extend of the deceased’s assets
