Personal Representatives - Obtaining the Grant

Question 1

Introduction

Answer 1

• until grant of representation has been issued, not much they can do to progress administration. Grant is confirmation of validity of Will and appointment of execs or that dec’d died intestate.
• if no execs, grant constitutes Courts authorisation of one or more administrators to deal with estate.
• 3 main grants of representation:
  1. Probate - issued to executors who proved Will

2. Administration with Will annexed (administration cum testamento annexo) - issued to administrators where there is a Will but no proving execs
3. administration on intestacy - issued to administrators

• exec takes authority from Will, whereas at death powers of administrator takes authority from order of Court, which is grant.

Question 2

Executors

Answer 2

• personal office.
• cannot be assigned - re Skinner 1958 - as appointed by Will of deceased. Can be either express or implied. Will may nominate someone to appoint an executor who may be nominee themselves.

> In the Goods of Cringan 1828 - test authorised legatees to appoint 2 execs.

• difficult can arise if appt is ambiguous - either patent (“I appoint one of my brother”) or latent (“I appoint my brother” where there is evidence of more than one)
• to resolve ambiguities, Ct will admit extrinsic evidence under s21 AJA 1982.
• exec may be appointed to deal with whole estate or appointed to a specific part of estate, for ex in connection with continuation of a business owned or a literary exec, as in Re Orwell 1982.
• appt may be limited in t9ime, for ex during minority of infant, substitutional (“I appoint X but, if he should go and live in France I appoint Y”) or conditional (“I appoint X on the condition that he acts with Y”)

Question 3

Appointment of a firm

Answer 3

• common to appoint a firm of sols, but generally good idea to appoint 2 as often also trustees as need 2 to give good receipt of proceeds of sale of land)
• 2 individual sols may be named, but may leave firm or predecease so best practice to appoint firm to act as execs.
• various pitfalls to avoid - if partnership then should be “the partners in the firm”
• membership of firm is ascertained at date of Will under principle in Re Whorwood 1887 so should refer as “partners in the firm at the date of my death”
• lastly, firm could be taken over so should refer to the firm that represents at date of death - usually also includes statement of test wishes that no more than 2 members of the firm obtain probate. Proved by Court in Re Horgan 1969
• doesnt become invalid if partnership turns into LLP, but should have clause to confirm what happens.
• sols now permitted to practise as incorporated bodies, so ref to firm in clauses should include ref to incorporated practice recognised by SRA.

*r36(4) Non Contentious Probate Rules 1987 - corporate body cant take grant in own right unless trust corporation, and then would have to nominate someone to act on behalf of practice or appoint attorney.

• used to be that where prof person or firm was appointed exec, Will had to include professional charging clause. Now, Trustee Act 2000 provides remuneration for professionals but should still have charging clause.

Question 4

Implied appointment of executor

Answer 4

• may not use express words but may name someone requesting to carry out acts that only exec would do - termed appointment “according to tenor”.
  >In the Goods of Baylis 1865 - will directed named persons were to pay debts of estate and hold it on trust of dec’d children, so were held to be executors.

> In the Estate of McKenzie 1909 - appt as trustee without instruction to pay debts was held not to be an appt as an exec.

Question 5

Passing over and substitution of executors

Answer 5

*S116 Senior Courts Act 1981 gives ct power to pass over exec (refuse to give grant in their favour) in special circumstances where expedient to do so. Ct will appt replacement administrator.
- examples:

. executor is insolvent
. executor is incapable of acting - for ex serving in prison - Re S 1968
. all those with an interest in the estate, as well as those entitled to a grant request that their nominee is appointed - Re Potter 1899
. exec refuses to take out grant of probate although accepted office by intermeddling (commencing process of administering estate) - Re Biggs 1966
. exec cannot be found - in the Goods of Wright 1898 exec disappeared after warrant of arrest issued for him for embezzlement.
. exec is of bad character - Re Crippen 1911 where exec was serving sentence for murder

> Khan v Crossland 2012 - test appt firm of will writers as execs, had little contact with them. Bens all adults and united in requesting exec replaced following breakdown of trust - ct exercised discretion under s116 to appt them as replacements.

> AB v Dobbs 2010 - Ct emphasised power to pass over execs should be exercised only in extreme cases.

• Under s50 Administration of Justice Act 1985 exec or ben may apply to Ct for an order to replace existing exec with substitute. Often after grant issued where breakdown of trust between bens and exec likely to affect administration of estate.
  >Re Steele 2010 - exec replaced due to breakdown in trust, even though exec not committed no wrongdoing. Can be applied for if there is falling out among execs themselves.

> Goodman and Another v Goodman and Another 2013 - Ct said order can be applied for under s50 even though no grant issued to execs appointed by Will because authority stems from Will itself so app under s50 AHA is alternative to app under s116 Senior Courts Act 1981.

> National Westminster Bank v Lucas and Others 2014 - bank appt exec of Jimmy Saville, under Will Jimmy Saville Charitable Trust was residuary beneficiary, but large number of claims from victims, were anticipated to exceed value of estate, including third party def such as BBC and NHS hospitals claiming indemnity on estate.
- developed scheme for managing lit which claims could be dealt with fairly and minimum legal costs.
- trust objected and applied under s50 AJA 1985 for bank to be replaced as exec, Ct rejected on basis that risk not being able to pay creditors, where directors are bound to consider interests of creditors and not just shareholders.

Question 6

Number of executors

Answer 6

• can name anyone as exec, but s114 SCA 1981 provides maximum of 4 can get grant in respect of same part of estate.
• could appoint 4 to be general execs then 2 more in respect of literary estate.
• 4 would get grant of probate to estate, apart from literary assets which separate grant obtained by literary execs

Question 7

Persons who may be appointed as executors

Answer 7

• in general, can appoint anyone to be exec.
• few exceptions:
  1. Minor cant act until attaining majority. if minor appointed sole exec, then limited grant would issue cum testamento annexo durante minore aetate to minor’s parent with parental responsibility or guardian.
• If minor aged 16 or over, can nominate anyone from their next of kin.
• Upon attaining majority, minor applies for cessate grant, and original grant ceases.
• if others appointed with minor, probate granted to others with power reserved for minor to prove when attain majority. When does, former minor granted double probate which runs concurrently with original grant.

2. Person of unsound mind cant act. If named sole exec, would be grant of letters of administration with will annexed limited during disability (durante dementia).
   - if others named who can act, power reserved to person so they can obtain probate if disability ends. if ends, would be grant of double probate.
3. Person being in known financial difficulties isn’t a bar, but if person becomes insolvent receiver will be appointed unless another exec.
4. Ct has inherent power to pass over unsuitable execs without citation (s116 Senior Courts Act 1981).

• where trust corp is appointed, corp can act either alone or in conjunction with others. Ct must be satisfied that Memorandum of Association to act as exec and copy of resolution appointing nominees must be filed with Court.
• corp aggregate which isnt trust corp, such as ordinary limited company, cant take out probate in own name but must act through nominees. Grant is letters of administration for use and benefit of corp.

Question 8

Chain of representation

Answer 8

• office of exec normally for life. If prop falls into estate many years later after completion of administration, exec duty bound to deal with it.
• where sole or last surviving exec dies in office having taken out grant of probate, s7 AEA 1925 provides that duties pass to their exec without need for further grant of probate with respect to original estate, provided that exec of original exec also takes out probate to estate for which they were appointed.
• chain of representation will be broken where sole or last surviving exec dies:
  . before obtaining grant of probate of original Will
  . intestate
  . leaving a Will but not appointing execs
  . leaving a Will appointing execs who are unable or unwilling to act

Question 9

Acceptance of Office

Answer 9

• person who takes out probate and proves Will or does anything in connection with estate which, if not named exec would have constituted them as executor de son tort will be deemed as having accepted.
• if person fails to take out grant after having accepted, may be cited to compel them to accept or refuse.
• collecting assets or paying debts would be sufficient enough to amount to acceptance, rendering person liable as exec - Re Stevens 1897 - but Ct wont consider trivial acts as acceptance - Holder v Holder 1968 - such as arranging funeral.

Question 10

Renunciation

Answer 10

• person appointed may renounce, if feel not able to carry out duties, either due to lack of time or don’t want to act.
• renunciation not final until filed in Principal or District Probate Registry
• doesnt preclude person applying for grant of administration to estate in another capacity, for ex as creditor, unless Ct expressly says can’t
• once formal renunciation made, may only be retracted with consent of Court - r37 NCPR 1987. Consent will be given only if can be shown that will be for benefit of the estate.
  >Re Gill 1873 - renounced on incorrect advice, Ct wouldn’t permit retraction as app couldn’t show would be for benefit of estate.
  >Re Stiles 1898 - retraction was allowed where co-exec who had taken out probate absconded.
• cant accept one appt and renounce others under chain of representation. Might be better to renounce probate for both and then if entitled, apply for probate of second - Re Toscani 1912.

Question 11

Administration with will annexed

Answer 11

• where dies leaving valid Will and no exec, app must be made for administration of estate with will annexed (cum testameno annexo)
• order of entitlement set out in r20 NCPR1987:

1. Exec entitled above all other and would be granted probate. All later classes are entitled to grant of administration with will annexed.
2. Trustees of residuary estate (if any)
3. Residuary beneficiaries and those entitled on intestacy where there is any property undisposed of by will
4. PRs of residuary bens or of anyone entitled to property undisposed of by Will where such persons died after deceased.
5. Any other beneficiary under Will or any creditor of deceased.
6. PR of any beneficiary who dies after deceased or creditor

• where more than one entitled to grant, may be issued to any of them without notice to others. Power reserved to other execs to take probate at later stage - double grant. Exec who doesn’t want to act can renounce and power reserved procedure allows exec to come in and prove Will should others become unable to continue administration.
  -Where more than one in same category, Ct has power to select most suitable person on behalf of infant in same category

Question 12

Administration - full intestacy

Answer 12

• where died without valid Will, order of entitlement follows order of beneficial entitlement on total intestacy (r22 NCPR 1987). Clearing off will be used as under r20 for higher categories of relative
• if no one has beneficial interest in estate, grant may be issued to Treasury Solicitor claiming bona vacantia on behalf of Crown (r22(2)) or if Treasury Solicitor cleared off, creditor can take out grant.
• under r22, person who falls within various classes of relative specified in intestacy rules entitled to grant only if they are entitled to share in estate, so app is selected from bens. if no one entitled or they renounce, grant may be issued to person who would be ben in event of accretion to estate
  -if spouse or civil partner solely entitled to small estate, but dont wish to act, issue could take grant under this rule. If ben dies after deceased without taking out grant, PRs can apply for grant on their behalf.
• under r20 app by living person preferred to one by Prs and app by an adult preferred to one on behalf of infant. App by PRs of deceased spouse or civil partner would have lower priority than one by other living bens, unless solely entitled to estate.
• administrator or ben can seek order for substitute administrator under s50 AJA 1985, but since power derives from grant, limited to situations where grant already issued at time when order sought. Beforehand, would need to apply under s116 SCA 1981

Question 13

Number of administrators

Answer 13

• Minimum of 2 individuals or trust corporation must be appointed as administrators or administrators with Will annexed where child beneficiary under 18 or life interest, unless Ct considers it expedient to appoint only one (s114(2) SCA 1981)
• if appointee dies, Ct has power to appoint another administrator while minority or life interest exists if application made (S114(4))

Question 14

Executor de son tort

Answer 14

• person who is not true exec but who, without authority, acts as if they are PR of estate - intermeddler in estate. Someone who obtains estate property or releases debts without lawful authority will be liable to creditors to extent of assets they have received - s28 Administration of Estates Act 1925
• examples of act including carrying on business of deceased (Hooper v Summersett 1810) and collecting debts (Sharland v Mildon 1845).
• acts of necessity or charity, such as arranging funeral or feeding livestock not make exec de son tort.
  >Pollard v Jackson 1994 - tenant who kept parts of prop occupied by deceased tidy and burnt rubbish was not held exec de son tort.
• can be liable if acted innocently.
  >New York Breweries Co Ltd v Attorney-General 1898 - English co held liable for allowing transfer of shares to foreign PRs without requiring production of English grant of probate.
• is liable to extent of assets they have received, but could plead as defence that they dealt with in way a lawful PR would have done.
  >IRC v Stype Investments (Jersey) Ltd 1982 - IR contended that by remitting sale proceeds of English property out of jurisdiction, trustees diverted funds placing them out of reach of PRs of deceased constituted in England

Question 15

Small Estates

Answer 15

• certain types of estate may be administered without the need of grant, for example where assets consist of National Savings or building society accounts to a maximum of £5k
• Administration of Estates (Small Payments) Act 1965

Question 16

Grants of probate and administration

Answer 16

• common form made to Family Division.
• Contentious probate referred to Chancery Division.

COMMON FORM
- primary duty of PRs is to collect in and value assets of deceased and assess all bona fide debts and IHT due on estate. Docs to be filed are:

1. Statement of truth signed by PR giving details of, inter alia, dates of birth and death of deceased, domicile, testate or intestate, distribution, that PR will duly administer according to law and will render true acc of administration and indicate gross and net values of estate
   - oath sworn by PR giving same info also accepted by Probate Registry
2. Any original Will or copy or reconstruction where original Will cant be found and presumption of animus revocandi has been rebutted. 2 a4 copies, not stapled, must be enclosed.
   - engrossed copy of Will in form which is to be proved must be sent where parts are not admissible to probate.
   - photocopy of will bearing Ct seal will be attached to grant. Ct may blank out certain parts, for reasons of national security or where words used may be distressing to family and have no disposing effect.
3. if required, form IHT 421 showing prior payment of inheritance tax or form IHT 205 if excepted estate for tax purposes; HMRC acc on form IHT400 giving details of inventory of estate sent to HMRC first. Payment of inheritance tax due on value of estate situated in UK.

• registrar or District Judge has power under NCPR 1987 to call for further proof by way of affidavit, listed below:

1. knowledge and approval (r13 NCPR 1987) - any situation where there is doubt test had knowledge of contents, for example was blind or illiterate.
2. Due execution (r12 NCPR 1987) - s9 WA 1837 says that no form of attestation is necessary but if Will doesnt contain standard form attestation clause or if signed in unusual place, Registrar or DJ may call for further proof, usually from witnesses if available, by way of affidavit.
3. Terms, condition and date of execution (r14 NCPR 1987) - where will mutilated in some way that could suggest another doc may have been attached, there has been attempted revocation by test or not dated. Can call for affidavit evidence for clarification, usually from those who had custody of Will in prep. Same way where unattested alterations.

Question 17

Administration de bonis non administratis

Answer 17

• translates to “of the goods not yet administered”
• applies where administration of the estate hasn’t been completed and original PRs die in circumstances where chain of representation is broken.
• persons who can apply for grant de bonis non are same as ordered in r20 and r22 NCPR 1987, depending on whether grant is with Will annexed or total intestacy

Question 18

Revocation of grants

Answer 18

• Ct has power under s121(1) SCA 1981 to revoke grant that shouldn’t have been made or contains an error.

REASONS FOR RECOVACATION
1. Grant to wrong person where, for ex, believed they died intestate but later a valid Will is found and proved.
2. Grant issued on basis of false statement - In the Estate of Napier 1809 grant issued on belief that person had died but was still alive.
3. Where issue of the grant was irregular, for ex, grant issued without due notice to caveator
4. If PR leaves jurisdiction in circumstances unlikely to return
>In the Goods of Loveday 1900 - died intestate leaving widow & 6 kids by former marriage. Widow got letters of administration but disappeared before finishing, so grant was revoked and grant de bonis non was given to one of the children.
>In the Estate of Cope 1954 - app made to revoke grant to A and B on basis not made full disclosure of assets in HMRC acc and had shown as liability against estate a debt allegedly due to A which was disputed. Ct refused as not special circumstances and instead ordered inventory.
5. Where PR becomes incapable through physical or mental infirmity - if one PR becomes incapable, grant revoked and new grant issued to remaining PRs. If only PR becomes incapable, grant not revoked but grant of letters of administration de bonis non is issued for use and benefit of incapable person.
6. If PR wishes to retire, for a reason that is satisfactory to Ct
7. Where there is a serious breach of duty prejudicing beneficiaries, such as dishonesty.

• Ct has power in contentious proceedings to revoke grant of probate on evidence that shouldn’t have been made as a result of proof of lack of capacity, intention or non-compliance with correct formalities.
  >Re Wilson (Deceased) 2013 - revoked grant of probate on hearing subsequent evidence from her nieces that established that dec’d lacked capacity and intention at time made Will. Ct revoked grant of probate, declared that dec’d had died intestate and granted letters of administration to nieces, her closes relatives.
• Also ordered rectification of entries at LR to remove names of those who benefitted under Will and replace with nieces in capacity as administrators.

Question 19

Effect of revocation

Answer 19

• s27 AEA 1925 protects 3rd parties who dealt in good faith with PR whos grant revoked.
• PRs entitled to be indemnified from estate, provided acted in good faith.
• all payments by and to PR before revocation are valid, provided made in good faith.
• s27(1) AEA 1925 provides that PR who acts in good faith under revoked grant protected from liability - doesn’t prevent those correctly entitled from recovering assets from bens.
• contracts for sale remain binding and enforceable by estate even if grant revoked - s39 AEA 1925.
• purchaser from PR also protected by s37 AEA 1925 which provides that conveyance of property from PRs is valid in favour of purchaser in good faith and for value, despite any later revocation of grant.
• conveyance defined in s55 to include mortgage, legal charge, lease or assent, but some writing is required.
• If no writing present, purchaser can rely on rule in Hewson v Shelley 1914, which protects purchaser in good faith and for value.

Question 20

Foreign Grants

Answer 20

• if owned prop outside England and Wales, must be compliance with requirements as to probate of that Country. Means another grant or alternative process will have to be taken out in that Country.
• where grant already taken out in another country, this may not be sufficient for Court in England and Wales and another grant will need to be issued here.
  *s1 Administration of Estates Act 1971 - grants issued in England and Wales, Scotland and Northern Ireland will be recognised automatically in any of other countries specified provided that dec’d domiciled at date of death in that country.
• grant issued in majority of common wealth countries may be resealed in England and Wales irrespective of domicile of deceased - Colonial Probates Act 1892
• otherwise, fresh grant need to be taken out in country where foreign assets situated.