Protection for PRs Flashcards
What can PRs seek if the construction of a will is ambiguous?
- Administration proceedings in the form of an administration action application to have the estate administered by the court
- or specific relief - an application for guidance on a specific matter
What is the benefit of S48 AJA 1985 for PRs?
Less time consuming - PRs may make an application to distribute in accordance with a written legal opinion.
What is required for trustees under S27 TA 1925 before distributing to beneficiaries?
Publish a notice of their intention to distribute to known beneficiaries two months after the advertisement. The notice must be placed in the London Gazette and other appropriate newspapers..
What does the notice under S27 TA 1925 protect against?
Claims by unknown beneficiaries and creditors. It does not protect beneficiaries who may receive more than they are entitled to - disappointed creditors/beneficiaries can still claim against them
What is a Benjamin Order?
An order to permit PRs to distribute the estate based on an assumption regarding missing beneficiaries
This may include assumptions that the missing beneficiaries have died or had no children.
What must PRs do before applying for a Benjamin Order?
Make full enquiries to establish the true position and establish that there is no reasonable prospect of knowing the true position without disproportionate expense.
What does the Presumption of Death Act allow?
A court order declaring that a person thought to have died for seven years or more has died
This process is generally easier than obtaining a Benjamin Order.
What may affect the possibility of obtaining insurance for PRs?
If the risk is too high
Premiums may also be very high.
What can PRs seek from beneficiaries they can trace?
An indemnity - but risky (only as good as the person giving it)
When is payment into court useful?
PRs could pay legacy into court and distribute the balance of the estate. BUT those who would otherwise benefit may not like this, court doesn’t like this
What is exoneration by the court for PRs?
An order exonerating them from personal liability for breach. This is granted only if the court believes the PR acted honestly and reasonably and ought fairly to be excused for breach of trust.
What do exemption clauses in a will do?
Exclude or restrict liability for a PR’s wrongdoing. Can exclude for innocent mistake and gross negligence, but never fraud.
