Personal Representatives Flashcards
What is a Personal Representative
Those who are entitled to administer the estate of the deceased.
Executor or Administrator
Can an executor be appointed?
Generally the executor is chosen by the deceased - Re Skinner 1958 (Personal office)
If no executor is appointed or the person appointed is unable or unwilling to act then an administrator will have to be appointed
Which rules provide for the application of grant of letters of administration
r20 Non-Contentious Probate Rules 1987
Will attached (cum testamento annexo)
Which rules provide for an application for a grant in intestate estates
r22 Non-Contentious Probate Rules 1987
Order of entitlement
Grant of Administration
What is Executorship?
Higher office as takes authority from will
Can do any act based on will
Pay debts, legacies and enter into contract of sale of property from the estate
Authority effective from date of death of the testator
What is administratorship?
Must establish entitlement from benefit or as a creditor of the estate under either r20 or r22 NCPR 1987
Take authority from order of the court
Cannot act until grant of letters of administration is obtained
Property vests in Public Trustee until grant obtained
Two cases where administrator acted before grant obtained
Ingall v Moran 1944 - Writ
Milburn-Snell and Others v Evans 2011
Court struck out action before grant obtained
Can a firm be appointed as an executor?
Yes - will should refer to the partners of the firm
A named solicitor may leave the firm
Re Whorwood 1887
How many executors can be named
Any number although only 4 can apply for a grant
What was decided in the case of Re Stevens 1897
Executor accepts his offer when ‘intermeddles’ with the estate
In contempt of court if then refuses to act
Statute which gives court power to pass over an executor and appoint replacement
s116 Senior Courts Act 1981
Three cases where court passed over the appointment of executorship
Re Crippen 1911 - executor in prison for murder (bad character)
Re Biggs 1966 - intermeddled but refused
AB v Dobbs 2010 - Court emphasised only in extreme cases
What is the difference between a PR and a Trustee
A PR deals with gathering and valuing assets, settling liabilities and distributing assets in accordance with will
A Trustee holds certain assets until a special event occurs.
What happens if chain of representation is broken
Apply for letters of administration de bonis non administratis
PRs take action within 12 years
Trustees 6 years
