Contentious Representation

The person appointed in a will to put it into effect is the executor. Where there is no will, an administrator takes letters of administration. Where there is a will but the person named refuses to or cannot act, letters of administration with the will annexed are taken out.

The vast majority of grants are in so-called common form. They issue from the probate office under the non-contentious probate rules on the force of an application. A grant in common form occurs after a formal court action known as a probate action in which the will or grant is proved.

The executor is appointed by the will. It is possible to have executors appointed in other ways. The executor may be expressly appointed where he is not described as such but is the person designated to carry out the functions of an executor. A person may be nominated an executor. This is very rare.

A court may appoint any person as executor or administrator and may overrule the normal default rule. This may occur where the appointed executor is inappropriate, where, for example, he has committed or is alleged to have committed a criminal offense in relation to the deceased.

Where the last remaining executor dies before completing administration of the estate, that executor’s executor will become the executor of the first deceased estate. A chain may therefore emerge.

Any number of persons can be appointed executor. Where there is more than one, they may act jointly. Alternatively, only one may take out a grant, and the other may reserve his position. One or more may renounce their right to take probate or alternatively reserve it.

An executor must be over 18 years of age. He must be capable of managing his affairs.

If a testator dies having divorced or annulled, the will takes effect as if the executor had died immediately before him, subject to a contrary provision being made in the will.

A company may be appointed executor. Generally, trust corporations may be appointed.

An executor need not act. He may choose to take the appointment or renounce it. There is a procedure by which a person can be forced to choose either to take probate or lose the right to do so. This is known as citation.

Once a person commences acting as an executor, he is generally obliged to complete the duties. A person may be deemed to have accepted the office of an executor by acting as such even though he has not yet got a grant of probate.

The noncontentious probate rules specify who is entitled to letters of administration either with the will annexed or where there is no will/intestacy. Where a number of people are in the same class, any may apply.

Where a member of a lower-ranking class of entitlement may act, all the persons in the higher-ranking class may be – must be cleared out by being cited or announcing entitlement. A court, however, on application may bypass the normal rules where this is appropriate.

Where there is a will, but the executor is unwilling or unable to act, the rules set out in order of priority as to who may obtain letters of administration with the will annexed. The order of entitlement is residuary legacy, i.e., a person holding the balance on trust; a person holding the balance for life; a person with a title to the balance or residue; a person with a specific gift or credit; persons entitled to contingency.

In cases of administration where no will is made, the order of entitlement is as follows: the surviving spouse; deceased children; father and mother; brothers and sisters, including brothers and sisters of the half-blood; grandparents; uncles and aunts; great-grandparents.

There are further rules for more distant relations. Ultimately, the nearest next of kin of the nearest degree is the last line of entitlement. Where there are none, the nominee of the crown may apply for a grant.

The interest or the grant follows the interest. That is, the entitlement generally rests with the person with a principal entitlement to the estate itself.

Once persons entitled to a grant have been accounted for or where they fail proceed, a creditor may apply for a grant on the order of a master. A grant may be given to persons with contingent interest.

The chain of executor will does not apply in relation to an administrator. The maximum number is four unless the master otherwise directs.

Regarding the role of an executor, the person entitled under the rules to administration may renounce entitlement. Retraction requires the consent of the master.

In some limited situations, assets below a certain amount may be administered without a grant of probate or administration.

An executor may act prior to obtaining a grant of probate. However, this will generally not be prudent, as the grant of probate proves entitlement. On the other hand, the administrator may not act without the grant.

The grant of representation is made by the court. The vast majority of grants are issued in common form through the court’s office under the noncontentious rule. In exceptional cases, contentious cases, the High Court Family Division may issue a grant. The county court has powers to issue a grant in the case of a relatively small net estate.

An application may be made in person or through a solicitor to the Probate and Matrimonial Office of the Family Division. This is commonly known as the Probate Office.

The application is supported by an affidavit swearing entitlement to the grant. There are separate forms of oath for an executor and administrator.

Where a grant of probate is sought, the original will must be produced and exhibited. Where it is not available for some reason, an application is required to the master explaining the absence of the original will and proving the contents, usually to a copy. It must be proved that the will is valid on the balance of probabilities.

The oath swears the truth of the relevant facts e.g. that the last will has not been revoked   and the applicant undertakes to administer the estate in accordance with the will or the rules of administration if no will. This requires that the deceased’s assets would be collected and administered.

The deceased’s death must be proved by production of a death certificate. The value of the estate in the United Kingdom must be set out. This refers to assets passing to the deceased’s estate. It therefore excludes jointly-owned assets and assets which are passed outside the estate.

In the case of an estate below a certain size (£145,000), an Inland Revenue account is not necessary as a condition of issue of a grant.

There are a number of specialized grants which may be granted by the courts or master in particular circumstances.

There is a type of grant granted as an emergency measure where the estate is in need of protection and circumstances so require. The application is made to the master by way of affidavit. It is usually for the purpose of gathering in the estate only rather than distribution.

An application for a grant pending litigation is a grant which administration pending a probate action below. The High Court may make a grant pending litigation where there are legal proceedings affecting the validity of the will in place. Legal proceedings must actually have commenced.

Where the personal representative has been resident outside Northern Ireland for more than 12 years after death, administration may be granted to another interested party, including a creditor in his application. The application is made to the court.

An application can be made for a grant of representation while the named executor is underage. A grant of administration for the use and benefit of a minor may be granted to other parties of the will, such as the residuary legacy or if the residuary legacy is the minor, to his guardian. The master may appoint a guardian.

Where the named executor is incapable of managing his affairs due to mental or physical incapacity, the grant may be issued for his use and benefit to certain third parties. This may be the person authorized by the master or the Office of Care and Protection, or if there is a residuary legacy to that person. In other cases, the master may direct to whom the grant may issue.

Where a will is disputed, a caveat, being a warning document, may be filed with the probate office. This operates to ensure that no grant is sealed without notice being given to the person who has lodged the caveat. That person who lodges the caveat may be required to give security for costs arising from it. A caveat usually lasts for six months and must be renewed if required.

There is a procedure for the removal of a caveat. The person lodging the caveat is effectively warned, which requires him to prove his entitlement within a certain period or have it fall away. If the person lodging can prove his entitlement, it may remain in place until the underlying subject matter is concluded by litigation in probate action.

Where a person is entitled to a grant of probate and letters of administration refuse to take it, they – a citation may be issued. This issues in the probate office and requires the person cited to enter an appearance and take the steps or lose his entitlement to do so. A citation may be issued for a person to grant or refuse representations. A citation may be made where it is alleged that there is a will but no proof is forthcoming. In this case, a person may be cited to propound the will or so as to give the person with another will, the chance to proceed in the absence of it being proved.

A person may be cited to take out a grant of probate. This may occur where a person has become executor by acting as if he was executor.

A grant of representation in Northern Ireland in relation to property of a person dying domiciled in Northern Ireland is effective throughout the United Kingdom without being resealed. This is not the position in respect of the Republic of Ireland. The High Court may reseal a grant obtained in most Commonwealth jurisdictions.

A grant may be revoked by the High Court where it is made to a person who is later found not to be entitled or at the time it was made to a person who was entitled. Alternatively, it may be revoked if notwithstanding that it was properly issued, it is appropriate in the interest of persons entitled to the estate that it be revoked.

Revocation may take place where a later will is found. Persons making payments to the personal representation before revocation are also protected.