Personal representatives - Renunciation and reservation of power

Learning Outcomes

After reading this article, you will be able to explain the legal concepts of renunciation and reservation of power for personal representatives in estate administration. You will understand the statutory requirements, the effects of each option, and how to advise clients or answer SQE1 questions on when and how an executor or administrator may step aside or defer their involvement.

SQE1 Syllabus

For SQE1, you are required to understand the legal status, procedures, and consequences of renunciation and reservation of power by personal representatives. In your revision, focus on:

• The distinction between renunciation and reservation of power for executors and administrators
• The statutory and procedural requirements for valid renunciation and reservation of power
• The legal effects and practical implications of each option
• The ability to identify and apply these rules in SQE1-style scenarios

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 effect of an executor renouncing their office after the testator’s death?
2. Can an executor who has reserved power later join in the administration of the estate? If so, how?
3. What formalities must be satisfied for a renunciation to be valid?
4. Is it possible for an executor to renounce after they have started acting in the estate?

Introduction

When a person dies, their estate is administered by personal representatives—either executors (appointed by will) or administrators (appointed by the court). Sometimes, a person named as executor or entitled to act as administrator may not wish to take up the role, or may wish to defer their involvement. The law provides two main options: renunciation and reservation of power. Understanding the differences, requirements, and effects of each is essential for SQE1.

Renunciation of Power

Renunciation is the formal act by which a personal representative declines to act in the administration of an estate. This is a permanent decision and has significant legal consequences.

Key Term: renunciation The formal, written refusal by a personal representative to take up the office of executor or administrator, resulting in permanent withdrawal from the role.

Requirements for Renunciation

A valid renunciation must:

• Be in writing
• Be signed by the person renouncing
• Clearly state the intention to renounce
• Be filed at the probate registry (for executors, using the prescribed form)

Once filed and accepted, the renunciation is generally irrevocable. The court may allow withdrawal of a renunciation only in exceptional circumstances.

Effects of Renunciation

• The person renouncing loses all rights and powers as a personal representative.
• They cannot later reclaim the office without a court order.
• The administration of the estate proceeds as if they had never been appointed or entitled.
• Any actions taken before renunciation (such as dealing with estate assets) may result in personal liability.

Key Term: intermeddling Any act by a person named as executor or entitled to act as administrator which amounts to dealing with the estate, potentially making them liable as an executor de son tort.

Who Can Renounce?

• Executors named in a will may renounce unless they have already intermeddled in the estate.
• Administrators entitled under the rules of intestacy may also renounce, subject to similar restrictions.

Worked Example 1.1

Question: Olivia is named as an executor in her uncle’s will. She signs a renunciation form and files it at the probate registry. Six months later, she changes her mind and wishes to act as executor. Can she do so?

Answer: No. Once a renunciation has been filed and accepted, Olivia cannot act as executor unless the court grants her permission to withdraw the renunciation, which is rare and only allowed in exceptional cases.

Reservation of Power

Reservation of power allows a personal representative to defer active involvement in the administration of the estate while retaining the right to join in later.

Key Term: reservation of power The procedural mechanism by which an executor (or administrator) does not join in the initial grant but retains the right to apply for a grant and participate in the administration at a later stage.

How Reservation of Power Works

• Applies mainly to executors (not administrators).
• When one or more executors apply for probate, another named executor may choose not to join in the application.
• Power is reserved to the non-proving executor, who is noted as having "power reserved" in the grant.
• The non-proving executor may later apply for a grant (called a double probate) and join in the administration.

Effects of Reservation of Power

• The executor with power reserved is not involved in the administration unless and until they apply for a grant.
• They retain the right to step in at any time before the administration is complete.
• They remain subject to certain duties and may be liable for the proper administration of the estate if they later join.

Worked Example 1.2

Question: Three executors are named in a will: Ben, Priya, and Sam. Ben and Priya apply for probate; Sam does not wish to act immediately but wants to keep the option open. What should Sam do?

Answer: Sam should have power reserved to him when Ben and Priya apply for probate. He will not be involved in the administration unless he later applies for a grant (double probate) and joins as executor.

Comparison: Renunciation vs Reservation of Power

Exam Warning

Renunciation is generally irrevocable. If an executor has already started acting (intermeddling), they cannot renounce and may be treated as an executor de son tort, with personal liability for their actions.

Revision Tip

Reservation of power is only available where there are multiple executors. A sole executor cannot reserve power—they must either act or renounce.

Summary

• Renunciation is a permanent, formal withdrawal from the office of personal representative.
• Reservation of power allows an executor to defer involvement but retain the right to join later.
• Both options have strict procedural requirements and significant legal effects.
• Intermeddling before renunciation may prevent renunciation and create personal liability.

Key Point Checklist

This article has covered the following key knowledge points:

• Renunciation is a permanent, written refusal to act as executor or administrator, filed at the probate registry.
• Once renounced, the office cannot be reclaimed except with court permission.
• Reservation of power allows an executor to defer involvement and later apply for a grant.
• Reservation of power is only available where there are multiple executors.
• Intermeddling before renunciation may prevent renunciation and result in liability as executor de son tort.

Key Terms and Concepts

• renunciation
• intermeddling
• reservation of power