Beneficiaries' rights + PRs' liabilities Flashcards
How to prevent issue of grant?
Lodge a caveat with HMCTS (grant cannot be issued until caveat removed/expired)
How long does a caveat last?
6 months (can be extended)
How can the grant applicant respond to a caveat?
Issue a “warning”- caveator must then enter an appearance setting out their own interest within 14 days (if fails, caveat can be removed)
How to force a party with a right to a grant to act?
Apply for a citation
3 types of citation
- citation to take probate (if executor cannot renounce, but has not applied for grant),
- citation to propound will (authenticates will by getting grant)
- citation to accept/refuse grant (used to clear off person with right to grant who has not applied for it)
Best way to remove an executor unwilling to act?
Get a passing over order
How can beneficiaries inspect estate accounts?
If PRs refuse access to accounts, or they’re unclear, beneficiaries/anyone interested can apply to court, requiring PRs to provide inventory and accounts
What is “executor’s year”?
PRs not bound to distribute estate within 1 year from death (so, have at least 1 year to do it without being asked to do so)
Consequence of PRs breaching their fiduciary duties?
Must account for unauthorised profits
If bought property from estate, transaction voidable by beneficiaries within reasonable time
When can a devastavit claim be brought?
If PR caused loss to estate by his breach of duty
Remedy to a devastavit claim?
PR personally liable
Defences to devastavit claim:
- court can relieve PR of liability if acted honestly, reasonable, and should fairly be excused
- exclusion of liability clause in will
- beneficiary’s consent (over 18, and had full knowledge of facts)
- protection against unknown/missing beneficiary (if beneficiary unknown, no liability if advertised)
- limitation (12 years from when right to estate accrued)(BUT: no limit if fraud)
Tracing assets- proprietary claim
Beneficiary can bring a proprietary claim against the recipient to assets/proceeds unless the recipient is a bona fide purchaser for value without notice
Tracing assets- personal claim
Beneficiary can bring a personal claim for compensation against the recipient wrongly paid by the PRs (if all remedies against PRs exhausted)
Can PRs be removed?
No- only court can remove them (chooses whether to remove or substitute them)
