Learning Outcomes
After reading this article, you will be able to identify the main types of grants of representation, explain when each is required, and outline the precise documentation and evidence needed to obtain a grant. You will also be able to apply the legal rules on will validity, intestacy, and the duties of executors and administrators to SQE1-style scenarios.
SQE1 Syllabus
For SQE1, you are required to understand the process and requirements for obtaining a grant of representation in England and Wales. Focus your revision on:
- The different types of grants of representation (probate, letters of administration with will annexed, and letters of administration)
- The documentation and evidence required for each type of grant
- The legal rules for proving the validity of a will
- The order of entitlement to apply for a grant on intestacy
- The duties and responsibilities of executors and administrators in the application process
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.
- What is the difference between a grant of probate and letters of administration?
- Which documents must always be submitted when applying for a grant of probate?
- Who is entitled to apply for a grant of representation if a person dies intestate, leaving a spouse and children?
- What is the legal test for testamentary capacity when proving a will?
Introduction
When a person dies, their estate can only be administered by someone with legal authority. This authority is conferred by a grant of representation, which allows the personal representative to collect assets, pay debts, and distribute the estate. The process for obtaining a grant is strictly regulated, and the applicant must provide specific documentation and evidence to the Probate Registry. Understanding these requirements is essential for effective estate administration and for SQE1 exam success.
Types of Grants of Representation
There are three main types of grants of representation:
- Grant of Probate: Issued when the deceased left a valid will appointing executors.
- Letters of Administration with Will Annexed: Used when there is a valid will but no executor able or willing to act.
- Letters of Administration: Required when the deceased died intestate (without a valid will).
Key Term: grant of representation A legal document issued by the Probate Registry authorising a person to administer a deceased person's estate.
Required Documentation and Evidence
To obtain a grant of representation, the applicant must submit a prescribed set of documents and supporting evidence. The requirements vary depending on the type of grant sought.
The Original Will and Codicils
If the application is for probate or letters of administration with will annexed, the original will and any codicils must be lodged. The will must comply with the formalities set out in the Wills Act 1837.
Key Term: codicil A formal document that amends, adds to, or partially revokes an existing will.
If the original will is lost or destroyed, the applicant must provide an affidavit explaining the circumstances and evidence that the will was not revoked.
Death Certificate
A certified copy of the death certificate is always required. This document officially confirms the death and is obtained from the Registrar of Births, Deaths and Marriages.
Inheritance Tax Forms
Applicants must complete and submit the appropriate inheritance tax (IHT) forms:
- IHT205: For estates where no inheritance tax is due (excepted estates).
- IHT400: For estates where inheritance tax is payable.
- IHT421: Receipted by HMRC to confirm payment of any tax due.
The Probate Registry will not issue a grant until HMRC confirms that any inheritance tax due has been paid or that no tax is payable.
Statement of Truth
The applicant must provide a statement of truth confirming their entitlement to apply and their commitment to administer the estate according to law. This replaces the former oath and must include:
- The applicant’s relationship to the deceased
- Confirmation of the deceased’s details (name, date of death, domicile)
- A declaration to collect and distribute the estate lawfully
Identification Documents
Proof of identity and address for each applicant is required. This usually includes a passport or driving licence and a recent utility bill.
Additional Documentation
Depending on the circumstances, further documents may be needed:
- Renunciation Form: If a named executor wishes to renounce their role.
- Evidence of Entitlement: For intestacy, documents proving the applicant’s relationship to the deceased (e.g., birth or marriage certificates).
- Affidavit Evidence: If there are irregularities (e.g., a damaged will, missing pages, or suspicious circumstances), the Probate Registry may require sworn statements from witnesses or others with knowledge of the facts.
Proving the Validity of a Will
When applying for a grant of probate or letters of administration with will annexed, the Probate Registry must be satisfied that the will is valid.
Testamentary Capacity
The testator must have had mental capacity at the time of making the will. The legal test is set out in Banks v Goodfellow (1870).
Key Term: testamentary capacity The mental ability required to make a valid will, including understanding the act, the property, and the claims of potential beneficiaries.
Knowledge and Approval
The testator must know and approve the contents of the will. If there are suspicious circumstances (e.g., a major beneficiary prepared the will), the burden is on the applicant to prove knowledge and approval.
Key Term: knowledge and approval The requirement that the testator understood and agreed to the contents of the will at the time of execution.
Absence of Undue Influence
The will must be made freely, without coercion or undue influence. If undue influence is alleged, evidence must be provided to refute such claims.
Key Term: undue influence Improper pressure or coercion that overcomes the free will of the testator when making a will.
Proper Execution
The will must comply with section 9 of the Wills Act 1837:
- In writing
- Signed by the testator (or by someone else in their presence and by their direction)
- Signed or acknowledged by the testator in the presence of two or more witnesses present at the same time
- Signed by the witnesses in the presence of the testator
Key Term: due execution The process of signing and witnessing a will in accordance with the statutory requirements.
Intestacy and Order of Entitlement
If the deceased died without a valid will, the estate is distributed according to the intestacy rules. The law prescribes a strict order of priority for who may apply for a grant of letters of administration.
Key Term: intestacy The situation where a person dies without leaving a valid will.
The order of entitlement is:
- Surviving spouse or civil partner
- Children of the deceased (including adopted children)
- Parents of the deceased
- Siblings, grandparents, uncles, and aunts, in a prescribed order
Stepchildren and unmarried partners are not entitled under the intestacy rules.
Worked Example 1.1
Scenario: John dies intestate, survived by his wife and two children. Who is entitled to apply for a grant of representation?
Answer: John's wife has the primary right to apply for letters of administration. If she does not wish to act, the children may apply.
Duties of Executors and Administrators
The personal representative (executor or administrator) must:
- Collect and safeguard the assets
- Pay debts and liabilities, including taxes
- Distribute the estate according to the will or intestacy rules
Failure to perform these duties can result in personal liability.
Worked Example 1.2
Scenario: Alice is named as executor in her aunt’s will but wishes to renounce the role. What must she do?
Answer: Alice must complete a renunciation form and submit it to the Probate Registry. The next entitled person (e.g., a residuary beneficiary) may then apply for a grant.
Exam Warning
The Probate Registry will not issue a grant if any required document is missing or if there are doubts about the will’s validity. Always check that all documentation is complete and that the will complies with statutory formalities.
Revision Tip
For SQE1, memorise the order of priority for grants on intestacy and the essential documents required for each type of grant.
Key Point Checklist
This article has covered the following key knowledge points:
- The three main types of grants of representation and when each is required
- The core documentation and evidence needed for each type of grant
- The legal requirements for proving the validity of a will
- The statutory order of entitlement to apply for a grant on intestacy
- The duties and responsibilities of executors and administrators in the application process
Key Terms and Concepts
- grant of representation
- codicil
- testamentary capacity
- knowledge and approval
- undue influence
- due execution
- intestacy
