1.2 Wills - Personal Representatives

Question 1

What type of personal representatives exist?

Answer 1

Executor
- Will includes appointment

Administrator
- Will NOT include appointment

Question 2

What duties do PRs owe?

Answer 2

1) Collect estate (personal/real property) from Deceased

2) Administer estate according to law
- Dispose residue
- Pay debts + gifts
- Duty of good faith
- Duty of care (reasonable care + skill based on expertise)
- Due diligence

Question 3

What may PRs be liable for breaching duties?

Answer 3

Negligence/Maladministration => Personal liability for losses

Question 4

How may PRs avoid liability?

Answer 4

Court relief
- PR acted honestly + reasonably

Clause excluding/modifying statutory duty

S. 27 TA 1925 notice (statutory advert - notice to distribute) => London Gazette + Local newspaper ASAP

• Parties interested in estate > Come forward within 2 months
• After 2 months => PRs can distribute w NO liability
• UNLESS PRs knew liability
• UNLESS Bens NOT traceable + Bens made claims

Question 5

How may PRs avoid liability where Bens cannot be traced?

Answer 5

Protection order is made

a) Benjamin order
- Ben found later > Claim vs Ben receiving share (NOT PR)

b) Insurance
- PR vs Ben found later

c) Indemnity
- Ben (known) can indemnify PR

d) Reserve fund/payment into court
- PR owed monies to Ben (missing) => Can be paid to/reserved for court

Question 6

Who may be appointed as executor (s. 20 Non-Contentious Probate Rules 1987)?

Answer 6

Valid appointment

a) Executor survives T

b) Residuary estate is valid => T can appoint;
- Residuary Ben
- Own PR
- Legatee
- [Substitute executor clause]

NOT valid appointment

a) T’s ex-spouse
b) Lack capacity
c) NOT assist in administration of estate

Question 7

What is required for renunciation of PRs’ powers?

Answer 7

1) In writing
2) Signed
3) Witnessed

Executor

• Remaining executor > Apply for grant
• Otherwise > Administrator to act

Administrator
- Next administrator > Apply for grant

Question 8

What is required for reservation of PRs’ powers?

Answer 8

1) Notice > Probate Registry
2) Notice > Executors (powers reserved for)

Reservation of powers => Other executors

• Executor can leave role (and return later)
• Useful where Executor expected absence/busy life
• T can appoint executors > 4 executors to take grant of representation

NO reservation of powers => Adminstrators!!!

Question 9

Where do PRs derive their powers from?

Answer 9

Wills => Executors

Statute => Executors/Administrators