Grants of representation - Non-Contentious Probate Rules

Learning Outcomes

After reading this article, you will be able to identify and explain the main types of grants of representation, the procedural rules for non-contentious probate applications, and the legal effects of renunciation and reservation of power. You will also be able to apply the correct hierarchy of entitlement and understand the impact of doctrines such as lapse and ademption in the context of estate administration.

SQE1 Syllabus

For SQE1, you are required to understand the process and rules for obtaining grants of representation in non-contentious probate matters. In your revision, focus on:

• the different types of grants of representation (probate, letters of administration with will annexed, simple letters of administration)
• the procedural hierarchy for entitlement to apply for a grant under the Non-Contentious Probate Rules (NCPR)
• the requirements for renunciation and reservation of power by executors
• the legal effect of a grant and the consequences of acting without one
• the application of doctrines such as lapse and ademption in the administration of estates

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. What is the difference between a grant of probate and letters of administration with will annexed?
2. Who is entitled to apply for a grant if the sole executor named in a will has died before the testator?
3. What is the effect of an executor renouncing probate?
4. What happens to a specific gift in a will if the asset is no longer in the estate at death?

Introduction

When a person dies, their estate must be administered by someone with legal authority. This authority is conferred by a grant of representation, which is obtained through procedures set out in the Non-Contentious Probate Rules (NCPR). Understanding the types of grants, the order of entitlement, and the procedural requirements is essential for lawful and effective estate administration.

Types of Grants of Representation

There are three main types of grants of representation, each suited to different circumstances depending on the existence and validity of a will and the availability of executors.

Key Term: grant of representation
A court-issued document authorising a person to collect, manage, and distribute a deceased person's estate.

Key Term: probate
A grant issued to the executor(s) named in a valid will, confirming their authority to administer the estate according to the will.

Key Term: letters of administration with will annexed
A grant issued when there is a valid will but no executor able or willing to act, appointing an administrator to carry out the will's terms.

Key Term: letters of administration
A grant issued when there is no valid will, authorising an administrator to distribute the estate under the intestacy rules.

Grant of Probate

This is issued when a valid will exists and at least one executor named in the will is able and willing to act. The executor applies for probate, which confirms their authority to deal with the estate.

Letters of Administration with Will Annexed

If there is a valid will but no executor is able or willing to act (for example, if all named executors have died, lack capacity, or renounce), the court appoints an administrator. The administrator must distribute the estate according to the will.

Letters of Administration

If there is no valid will, the estate is administered under the intestacy rules. The court grants letters of administration to the person(s) entitled under the statutory order of priority.

Procedural Hierarchy and Entitlement

The NCPR set out a strict order of priority for who may apply for a grant. This ensures that the person with the closest connection or greatest interest in the estate is given preference.

Key Term: Non-Contentious Probate Rules (NCPR)
The procedural rules governing applications for grants of representation in uncontested probate cases.

Key Term: hierarchy of entitlement
The statutory order determining who has priority to apply for a grant of representation.

The typical order is:

1. Executors named in the will
2. Residuary beneficiaries (those entitled to the residue under the will)
3. Personal representatives of residuary beneficiaries
4. Other beneficiaries under the will
5. Creditors of the deceased

If there is no will, the order is set by the intestacy rules, starting with the surviving spouse or civil partner, then children, parents, siblings, and so on.

Worked Example 1.1

A testator dies leaving a will naming two executors, but both have died before the testator. Who is entitled to apply for a grant?

Answer: The residuary beneficiary (the person entitled to the residue under the will) is next in line to apply for letters of administration with will annexed.

Renunciation and Reservation of Power

Executors named in a will may choose not to act. The NCPR provide two mechanisms:

Key Term: renunciation
The formal process by which a named executor permanently gives up the right to act as executor.

Key Term: reservation of power
A mechanism allowing a named executor to step aside temporarily, retaining the right to apply for probate later if needed.

• Renunciation: An executor who does not wish to act must sign a formal deed of renunciation. Once renounced, the right to act is lost and cannot be reclaimed except with court permission.
• Reservation of Power: If there are multiple executors, one may reserve power, allowing the others to act. The reserving executor may later apply to join the administration if necessary.

Worked Example 1.2

A will appoints three executors. One wishes to act, one is undecided, and one does not want to be involved. What are their options?

Answer: The executor who does not want to act may renounce. The undecided executor may reserve power, allowing the willing executor to obtain probate and administer the estate. The reserving executor may later apply to join if needed.

Effect of a Grant and Acting Without Authority

A grant of representation provides legal protection to those dealing with the estate. Banks, asset holders, and buyers of estate property can rely on the grant as proof of authority. If someone acts without a grant, they may be personally liable for any loss or unauthorised dealings.

Key Term: executor de son tort
A person who intermeddles with a deceased's estate without authority, and is treated as an executor for liability purposes.

Doctrines Affecting Gifts in Administration

Doctrine of Lapse

If a beneficiary named in a will dies before the testator, the gift to that beneficiary usually fails (lapses) and falls into residue. However, section 33 of the Wills Act 1837 provides an exception for gifts to children or siblings of the testator who leave issue.

Doctrine of Ademption

If a will makes a specific gift of an asset, but that asset is not in the estate at death (for example, it was sold or given away), the gift is adeemed and fails.

Key Term: ademption
The failure of a specific gift in a will because the asset is no longer part of the estate at death.

Key Term: lapse
The failure of a gift in a will because the beneficiary has died before the testator.

Worked Example 1.3

A will leaves "my car" to a friend, but the testator sold the car before death. What is the effect?

Answer: The gift is adeemed. The friend receives nothing, as the car is no longer part of the estate.

Partial Intestacy

If a will does not dispose of the entire estate, or if a gift fails and there is no substitution, the undisposed portion passes under the intestacy rules. In such cases, both a grant of probate (for the testate part) and letters of administration (for the intestate part) may be required.

Summary

Key Point Checklist

This article has covered the following key knowledge points:

• The three main types of grants of representation: probate, letters of administration with will annexed, and simple letters of administration.
• The Non-Contentious Probate Rules set out a strict order of entitlement for applying for a grant.
• Executors may renounce or reserve power; renunciation is permanent, reservation is temporary.
• Acting without a grant may result in personal liability as executor de son tort.
• The doctrines of lapse and ademption determine whether gifts in a will fail.
• Partial intestacy arises if the will does not dispose of the whole estate.

Key Terms and Concepts

• grant of representation
• probate
• letters of administration with will annexed
• letters of administration
• Non-Contentious Probate Rules (NCPR)
• hierarchy of entitlement
• renunciation
• reservation of power
• executor de son tort
• ademption
• lapse