Rights of Beneficiaries and Liabilities of Personal Representatives

Can a beneficiary prevent the issue of a grant of probate?

When would one be lodged?

Yes.

Lodge ‘caveat’ at HMCTS.

No grant issued unless caveat removed or ceased to be effective.

Beneficiary dispute validity of will (i.e. lack mental capacity).

What form do I fill in to lodge a caveat? How long does the block last?

Form PA8A.

6-months duration. Can be extended.

Grant applicant can issue ‘warning’.
Caveator 14-days to respond setting out interest.

Can the beneficiaries compel the grant of probate?

Why and how might this be done?

Yes.

Beneficiaries apply to HMCTS to issue ‘citation’.

Force party with right to grant to act.

Used where potential PRs fail to apply or renounce.

There are three types of citation.

When is the ‘citation to take probate’ used?

Executor lost right to renounce (i.e. inter-meddling).

Fails to apply for grant of probate.

Beneficiary apply to court bypass executor; apply for grant of letters of administration with will annexed to persons under NCPR 1987, r 20.

There are three types of citation.

When is the ‘citation to propound will’ used?

Citation to propound = Authenticate will by obtaining grant of probate.

Person becomes aware of a will which diminishes entitlement under earlier will.

Cite executors in later will to propound it.

Fail to respond? Apply for grant of probate as if later will invalid.

SUMMARY - Force hand of later will to solidify entitlement under earlier will.

There are three types of citation.

When is the ‘citation to accept or refuse grant’ used?

Clear off executor who has not applied or shown interest in applying for grant.

Grant then passes to citor.

Via grant of letters of administration with will annexed under NCPR 1987, r 20.

True or False: Because beneficiaries under a will have an equitable interest in the deceased property they can compel due administration of the will.

False.

Beneficiaries do not have legal / equitable interest under will until PRs transfer property to them.

But have some rights to compel administration.

What rights do beneficiaries have in regard to accounts and information?

PRs must keep accurate records receipts + payments.

Beneficiaries right to inspect accounts.

Refused? Apply to court compel production of accounts (Admin. of Estates Act 1925).

No automatic entitlement disclosure of PRs’ reasons / decisions.

What are the two administrative proceedings that beneficiaries (or anyone with interest) can bring?

Particular Issue - Non-contentious. Seek guidance from court on performance duty.

General Administration Order - Rare. Court supervises PRs. Cannot make decision without court consent.

How long do PRs have to distribute the assets under a will?

1-year from date of death.

Called ‘executor’s year’.

Apart from administration proceedings, beneficiaries can sue the PRs directly.

What is a claim for ‘breach of fiduciary duty’?

PRs must not place themselves in position where duties and personal interests conflict.

Must account for all profit earned from trust.

True or False: Where a PR obtains the consent of all beneficiaries aged over 18yo or a court order or provision in the will profits may be allowed.

True.

But outside this not allowed retain profit.

NOTE - Check questions for ages of beneficiaries.
All may consent, but one is u18.

If a PR purchases property from the estate is the transaction voidable?

True.

Beneficiaries must act within reasonable time.

Apart from administration proceedings, beneficiaries can sue the PRs directly.

What is ‘devastavit claim’?

PR cause loss to estate by breach of duty.

Liable? Pay estate back using own resources.

• Misuse (PR take assets).

• Maladministration (fail distribute in line with will / intestacy, fail collect the estate, breach duties, act outside of powers).

• Negligence (PR fails to take reasonable care expected performing duties).

What is the defence of s. 61, TA 1925 for a devastavit claim?

Court discretion for total / partial relief of PR for personal liability.

If acted honestly + reasonably.

If an adult beneficiary consented to a PR’s breach of duty, can they still bring a claim of devastavit?

No.

Defence of acquiescence of beneficiaries.

Provided Bens’ full knowledge of facts. No deception.

How does s. 27, TA 1925 provide an additional defence against a devastavit claim?

Distribute estate without knowing existence of other Ben? PRs personally liable.

Discharge if place ads for 2-month notice period (London Gazette, newspapers).

Excluded Ben then recover from other Bens.

When will s. 27, TA 1925 not provide a defence against a devastavit claim?

PRs know Ben exists but cannot be found.

Should have obtained indemnity from Bens, insurance or ‘Benjamin Order’.

What is the limitation period for an underpaid beneficiary to recover their share?

12 years from date on which right to receive accrued.

No time limit where PR take property for own use or breach of duty.

What are the two remedies under ‘following and tracing assets’?

PRs distribute to wrong person? Ben can follow assets into recipients’ hands.

1. Ben bring proprietary claim to assets (or traceable proceeds) from recipient.

2. Ben bring personal claim for compensation against recipient of assets. Must first exhaust remedies against PR.

Time limit = 12 years.

Once a PR has obtained a grant of probate they can renounce it at will.

Is this correct?

No.

Cannot be forced to accept. Can renounce.

But grant obtained? Office for life.

Court discretion to remove PR (s. 50, Administration of Justice Act 1985).

Overriding objective? = Welfare of Bens.

Must be one PR remaining though.

Are PRs personally liable to creditors upon the deceased’ death?

Yes.

Assume deceased’ debts and liabilities.

Cause of action against deceased during lifetime? Continue against PRs.

Must also perform contracts (i.e. 6 years limitation period).

NOTE - S. 27, TA 1925 applies here (i.e. 2-month notice)