Right Of Beneficiaries And Liability Of Personal Representatives

Question 1

What are the main duties of PRs?

Answer 1

Obtain a grant of representation, to collect and manage the assets of the estate, and to ascertain and pay the deceased debts and liabilities, and to distribute the remaining cash and assets in accordance with the will or intestacy rules.

Question 2

What are the rights of the beneficiaries in regard to the grant?

Answer 2

Preventing the issue of a grant

Compelling the issue of a grant

Passing over

Question 3

What rights do beneficairies have to compel due administration?

Answer 3

Accounts and information

Administration proceedings

Executors year

Question 4

What actions can beneficiaries claim against PRs for breach a of duty?

Answer 4

Breach of fiduciary duty

Devastavit

Question 5

What are the defences to a devastavit?

Answer 5

Section 61 TA

Exclusion clause int eh will

Acquiescence of beneficairies

Protection against unknown or missing claimants

Limitation

Question 6

How can beneficiary prevent the issue of a grant?

Answer 6

May be dispute over validity of the deceased will etc.

They can lodge a caveat at HMCTS. If a caveat is entered, no grant can be issued, until it is removed or ceases to be effective.

Question 7

How to apply for a caveat?

Answer 7

PA8A

Question 8

How long does the caveat last?

Answer 8

6 months, although it can be extended.

Question 9

How can beneficiary compel the issue of a grant?

Answer 9

Beneficiary can apply to HMCTS to issue a citation.

Question 10

What is a citation?

Answer 10

It is a method of forcing a party with a right to grant to act

Question 11

What are the 3 differnet citations?

Answer 11

Citation to take probate

Citation to propound a will

Citation to accept or refuse a grant

Question 12

What is a citation to take probate?

Answer 12

May be used where executor has lost their right to renounce probate, by Intermeddling, but still has not applied for grant of probate.

Question 13

What is citation to propound will?

Answer 13

Is used where a person becomes aware that there may be a will that would diminish their entitlement under an earlier will or under an intestacy.

Question 14

What is a citation to accept or refuse a grant?

Answer 14

A citation to accept or refuse a grant is the standard method of clearing off a period with a right who has no intention of applying.

Question 15

What is passing over?

Answer 15

Beneficiary can do this to compel an unwilling person to take a grant that is likely to produce more problems hat it solves.

S 116 senior courts act, for an order passing over that person in favour of someone else.

Question 16

What can beneficiaries do to compel administration in terms of accounts and information?

Answer 16

If PRs refuse to request accounts, anyone interested can apply to court for orde compelling PR to provide accounts .

Question 17

What can beneficiaries do to compel administration in terms of administration proceedings?

Answer 17

Administration proceedings can be brought by anyone with an interest in the estate.

2 categories - particular issue or general

Question 18

What is a application proceeding limited to a particular issue?

Answer 18

Application, non contentious, PR may seek guidance from court on performance of a duty or meaning of words

Question 19

What is an applciation of general administration order?

Answer 19

Less common
Court supervises the PRs, they cannot exercise their powers without court permission.

Question 20

What can beneficiaries do to compel administration in terms of executors year?

Answer 20

Common complaint from beneficairies is that there have been undue delay in paying their entitlement.

A personal representative is not bound to distribute estate of decease before expiration of one year of death, therefore PRs have at least 1 year.

Question 21

What are alternatives of bribing administration proceedings/

Answer 21

Breaching the PRs based on breach of duty

Question 22

What is a devastavit?

Answer 22

Wasting of assets.

Devastavit claim is where a PR has caused loss to the estate by a breach of duty

Question 23

What can a devastavit claim be based on?

Answer 23

Misuse of assets
Maladministration
Negligence

Question 24

What is s 61 defence of the claim for devastavit?

Answer 24

Court has a discretion to totally or partially relieve a PR of personal liability if they acted honestly and reasonably and ought fairly to be excused.

Question 25

What is the time limit for unpaid or underpaid beneficiary to bring a claim to recover interest?

Answer 25

12 years, running from date on which the right to recieve the estat accrued.

No time limit laid down in Limitation Act to bring claim for fraudulent breaches of duty.

Question 26

What are the 2 remedies available, if PRs distribute assets to someone not entitled?

Answer 26

Proprietary claim to assets, unless bona fide purchaser without notice

Personal claim for compensation against recipient of assets.

Question 27

What is the time limit for bringing a personal and proprietary claim for giving the assets to someone not entitled?

Answer 27

12 years

Question 28

Can PRs be removed?

Answer 28

They cannot be forced to accept office, they can renounce their right to the grant.

However, once extracted the grant, the office is for LIFE, unless court removes them.

Question 29

What power does court haev to remove PRs?

Answer 29

S 50 administration of justice act. Remove or substitute a PR.

Question 30

What are the rights of creditors in the estate?

Answer 30

Cause of action against this liable only to extent f deceased assets. Limitation period os 6 years.

PRs personally liable to creditors for devastavit, own resources.

Question 31

What is the transition from PRs to Trustees?

Answer 31

Where testator creates a trust in ther will, it is common to appoint same people to a ct as trustees and PRs.

However, PRs cannot retire, trustees can.