Wills Act 1837 - Personal Representative (PR)

Originally Louise would have been the executor but as she is deceased she is no longer able to carry out her duty. As there is no other available executor of the will, administrators will have to be deduced. To begin, it is critical that the will and subsequent codicil were developed according to formalities outlined in s.9 Wills Act 1837 and amended by s.17 Administration of Justice Act 1982^[1] as this will satisfy the requirements of the law relating to capacity, intention and compliance with the prescribed formalities. The identity of the personal representatives (PR) is determined by law and the issue of a Grant of Letters of Administration. The PR must usually be entitled to inherit some or all of the deceased estate under the intestacy rules which would apply if there had been no legal will available.

Therefore, prima facie it is likely that Jenny, John, Jason and Brendon would be potential candidates for application for PR powers of appointment. Jenny is the most likely candidate as the surviving spouse is first in the order of those entitled to apply. Subsequently it would be possible for Jason to apply, but almost impossible for David to be successful as unmarried same-sex partners do not hold the same significance of a spouse under English Law. Generally the grant is made to the first applicant but, in the event of a dispute between equally entitled administrators, the Registrar of the Probate Registry will decide. When making the application the applicant will have to attach a copy of Neil’s will and if successful will become the administrator.

The successful applicant will have to swear to be true in front of a probate registrar and the amount of inheritance tax will be calculated by the registrar before administration will begin and be due immediately.

As administrator the PR will be under a fiduciary duty to carry out the will and the Trustee Act 1925 will be applicable where appropriate. The PR’s primary function is to wind up the estate and distribute the property, however, there position may remain in existence for the duration of their life even after the payment of Neil’s debts and the distribution of assets, however, beneficiaries are subject to a 12 year limitation period within which litigation proceedings can commence. The PR will hold the deceased’s property both at common law and in equity until the property is transferred to the beneficiaries, therefore, the beneficiaries of the estate have no interest in any particular asset, merely the right to compel whomever is appointed PR to administer the estate properly.

After appointment, prima facie it would be the duty of the PR to recover all of Neil’s assets and to sell the house primarily because no statement has been made in regards to the distribution of the cottage and the individual due to inherit the residuary estate is deceased as well. Therefore, in order for Jenny to stay in the house further investigation will have to take place and in the mean time the PR would be unlikely to sell the house until the issue is resolved as prima facie Jenny does have a right to the matrimonial home as a joint tenant or perhaps under proprietory estoppel. As to the flat, the PR can not sell it because it is clearly not entirely Neil’s and thus will be examined further subsequently. The cash and investments worth £150,000 will also have to be recovered by issuing out a copy of the will and other application forms they may require to the appropriate holders of the funds.

Once all of the provisions have been decided upon, the estate will then be distributed and the order of distribution would be as follows. All, except the specific property designated to the beneficiaries, will be sold and the deceased funeral and administration costs will be paid. Then, Neil’s debts will have to be paid which in this instance requires £50,000 to be paid to the Golden Star Building Society and should it be held to be a valid trust the £10,000 for the grandchildren will be set aside. All other bequests will be distributed and transferred appropriately by deed, registration or specific method of transfer. What remains of the estate will be distributed between Jenny and Jason according to a specified formula.

The most straightforward bequest that can be fulfilled is the gift of the camera equipment that was specifically meant for Neil’s son Jason. As no one else fits the description of ‘son’ and assuming Jason has proof to the effect that he is Neil’s son, the camera, accessories and telephoto lens would prima facie be handed over to Jason and a receipt of goods would be requested by the PR. On this issue the only disputable aspect would be whether or not the telephoto lens constitutes “other such items” that Neil referred to in the will. “An imprecise definition of the intended…property will render the trust invalid for uncertainty of subject matter.”^[2] The subject matter clearly identified is the camera; therefore there is no dispute that Jason will receive the camera. When considering the intention of Neil it is likely that a court would hold that a tripod, films and filters would constitute accessories and possibly attribute the same intention to the telephoto lens making it fall under “other such items” as Neil called them. Items pertaining to photography have been bundled together under as one gift and the rationale behind “the rule that there can not be a trust of chattels which have not been separated from a mass of similar chattels” is that they are not necessarily identical.^[3] Therefore, it is likely that these camera items have been identified and separated from the bulk of other chattels is likely to allow the courts to construe the telephoto lens as part of the “other such items.” Should a court rule that the telephoto lens does not constitute part of the camera ensemble then the lens will revert back to the estate under a residuary trust.

The codicil Neil made invoked a trust for his grandchildren however did not specify the shares that each was to receive from the fund of £10,000 resulting in an uncertainty of subject matter and objects. Firstly, the size of the beneficial interest can not be determined and no words pertaining to the distribution are proffered by the codicil thus making guidance to the PR unidentifiable. For the certainty of subject matter to exist, it must be possible to ascertain the size of each beneficiary’s share.^[4] The court could apply the equity maxim that “equality is equity” and each grandchild would receive an equal share in the property.^[5]

The grandchildren number in two at the time of death and neither is over 18, thus a trustee will have to be appointed to hold their shares until they are 18. When the administration of the estate has been completed the PR ceases to hold the subject matter of the trust as executor, instead they must assent the trust assets to the trustees. The trustee can be the PR or Brendon, their father, could become the trustee and hold the vested interest for the children without obtaining any interest in the money himself and be bound by a fiduciary duty to carry out the trust. The problem arises when the objects are considered because it is possible that Jason may have children now or in the future and no perpetuity period has been assigned to the £10,000. It is assumed that the perpetuity period would be “the duration of a human life in being at the date that the trust was established plus an additional period of twenty-one years.”^[6] Therefore, the £10,000 would become available to the beneficiaries at 2026 at the earliest.

In regards to the crystal collection, Carol is no longer alive therefore, she no longer has an interest and it is likely prima facie that the collection would revert back to the estate in its entirety. The three certainties exist and all formalities have been followed in creating this trust, the only problem is there is no beneficiary and the one who was identified will never come to existence and there will be no equitable title to the property.^[7] In support of her children s33 (2) of the Wills Act 1837 provides that if the gift is to a child of the testator and the child dies before the testator leaving ‘issue’ they take the share or gift^[8]. The only way it could pass on to her children is if Carol made a trust over the anticipation of receiving the collection she had hoped “to receive under the will… of a living person”^[9] As Carol had a vested right to the collection at a future time she has an immediate proprietory interest in the property and can subject it to an immediate trust^[10] which could be created in favour of her family.

The provision for John to inherit his car was written with the intention at the time of creation to have John take the Fiesta. Since 1990, the Fiesta was traded for a Porsche. By having specifically stated “I own now” Neil absolutely identified the Fiesta and in 2002 confirmed the contents of the will having come into possession of the Porsche two years previous to the codicil. Therefore, it could be implied that Neil was aware that the provision was to be reinterpreted and the Porsche substituted the Fiesta when he confirmed the contents. The court would be likely to grant the car to John as it would see that the intention of Neil in 2002 was still to give John the car he ‘now owned’ knowing full well that it no longer implied the Fiesta.

With regards to Jenny, she has many issues to consider. Firstly, the flat that she holds as a joint tenant with Neil therefore, that flat will become the property of Jenny automatically^[11] as the entire interest in the property becomes property of the surviving joint tenants. The cottage which Neil owns in his sole name does not afford Jenny the same rights. Pettitt vPettitt^[12] made clear that a women’s housework, childcare and contributions towards expenses do not equate to contribution towards the purchase price therefore, unless the wife demands the house to be conveyed to the spouses jointly, she may find she has no interest in the house upon dissolution of her marriage. The court would have to know whether Jenny contributed to the purchase price of the cottage, paid any of the mortgage, or if the legal owner of the property (Neil) has encouraged a Jenny to believe that she has or will in the future obtain rights in respect of the property and the she has acted in reliance of this assurance to his detriment.^[13] In most cases the remedy preferable is of proprietary estoppel or when the Courts “protect the expectations of the non-owner and may award the non-owner as much as a full ownership interest in the land if justice demands.”^[14]

She will be the first in succession for inheritance of the residue of the estate as divorce proceedings have not begun nor has their intention to divorce been registered. Although the residuary estate will have to be shared with Jason if it can be proven that he is Neil’s legitimate son.

Unless Neil made another Will leaving his estate to David he will inherit nothing. Probate action can be very time consuming and expensive and David would have to make his claim before six months had passed since the grant of letters of administration. Generally a cohabiting partner of the deceased who has lived with the deceased for a minimum of two years immediately prior to is allowed to file an action. Also, potentially, he can attempt a legal claim on Neil’s estate if he was dependant on him at the time of his death.

BIBLIOGRAPHY

CONSUMER ASSOCIATION (2001) Wills and Probate London: Which? Ltd.

MARTIN, J. (2001) Hanbury & Martin Modern Equity 16^th Edition London: Sweet & Maxwell Ltd.

PEARCE, R. AND STEVENS, J. (2002) The Law of Trusts and Equitable Obligations 3^rd Edition London: LexisNexis Butterworth’s.

PENNER, J.E. (2001) Mozley and Whitley’s Law Dictionary 12^th Edition London: Butterworths.

POOLEY, R. AND MARTIN, J. (2004) Wills and Probate London: Hodder & Stoughton Educational.

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Footnotes

^[1] Martin (2001) page 93-94.

^[2] Pearce, (2002) page 159.

^[3] Martin (2001) page 99.

^[4] See Boyce v Boyce (1849) 16 Sim 476

^[5] See Petit v Smith (1695) 1 P Wms 7

^[6] Pearce (2002) page 367.

^[7] See Stamp Duties Comr (Queensland) v Livingstone [1965] AC 694.

^[8] Consumer’s Assoc. (2001) page 91-92.

^[9] Re Brooks Settlement Trusts [1939] Ch 993.

^[10] Re Midleton’s Will Trusts [1969] 1 Ch 600.

^[11] Pooley (2004) page 89.

^[12] [1970] AC 777.

^[13] Gillies v Keogh [1989] 2 NZLR 327 at page 346 per Richardson J.

^[14] Penner (2001), page 281.