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Personal representatives—authority prior to grant of representation

ExecutorsGeneralAn executor is a person appointed by the testator, usually by their Will or codicil, to:•administer their property, and•carry into effect the provisions of the WillThe office of executor derives from the testator’s Will or other testamentary document. The grant of probate confirms the executor’s authority to act.In practice an executor can only prove their entitlement by taking a grant of probate and this will often be required by banks and other institutions in order for the executor to be permitted to deal with the asset and collect it in.The testator’s property vests in the executor from the date of death without any interval of time.A testator may appoint:•different executors for different parts of their estate•certain people as executors of their property abroad and others of their property in the UK•separate executors of real estate•separate executors of literary estateThe High Court may grant probate or letters of administration in respect of any part of the estate of a deceased person limited in any way it thinks fit.Acts done before probateBefore...

Trust disputes—claims in negligence against trustees for their administration of the trust

This Practice Note is concerned with those breaches of duty by a trustee which consist solely of negligent acts or omissions, and which do not involve either the misapplication of trust funds or the breach of fiduciary duties, for example the duty which trustees have, to prefer the beneficiaries’ interests to their own interests. Liability for the misapplication of trust funds and for breaches of fiduciary duties are treated differently from liability for negligent breach of trust, and are considered in other Practice Notes.Before turning to negligent breach, however, it is necessary to touch on the distinctions between this and other types of breach.In brief, a trustee’s liability for negligent breach of trust is a liability to make equitable compensation, which is akin to a professional’s liability in negligence. It is therefore to be distinguished from trustees’ liability to reimburse a trust where they have misapplied the assets by, for example, paying them to the wrong persons or paying them in circumstances where payment is not authorised or by making...

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Is a professional attorney under a lasting power of attorney able to disclaim the appointment even if they have already started acting?

Is a professional attorney under a lasting power of attorney able to disclaim the appointment even if they have already started acting? Disclaimer/Resignation and intermeddling Disclaimer by an attorney, whether professional or otherwise, has a specific meaning for the purposes of the Mental Capacity Act 2005 (MCA 2005). It is the formal declaration of the attorney that they wish to stop acting as such. Different terms are used in the context of other appointments. An executor appointed under a Will who does not wish to play an active role in the administration of an estate can 'renounce' their right to apply for a grant. However, if they have taken any action in respect of the estate or intermeddled at all, such as settling any debts or collecting in the assets, they cannot renounce and may still be liable for any tax or the payment of debts. Conversely, in the context of trusts, a person who is neither a trustee nor authorised by the trustees and intermeddles with the trust...

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Disclosure, intermeddling and compensation (Walker v The Official Receiver)

Restructuring & Insolvency analysis: The court determined the application was, at first instance, considered on a mistaken legal footing due to a failure to provide full disclosure of the bankruptcy file until late in the day. The court at first instance had considered the application on the basis that the legal title and the entire beneficial interest in the relevant land vested in the official receiver (OR) and that the OR had the power to sell said land. This was not the case. Mr Walker held the legal title in the land on trust. Only one-third of the beneficial interest vested in the trustee in bankruptcy due to Mr Walker’s parents being beneficially entitled to the remaining two-thirds. On a proper analysis, the trustee in bankruptcy had intermeddled and was in principle liable to account to the beneficiaries. Permission to appeal was granted, it being likely that there would be benefit to the estate. Written by Natasha Dzameh, barrister and mediator at St John’s Chambers.

Legal effect of a sole trustee retiring without a successor trustee (In the Matter of the Representation of RBC Trustees (Guernsey) Limited)

Private Client analysis: Nigel Sanders, partner at Ogier, and Liana Pallot, associate at the firm and advocate of the Royal Court of Jersey, consider a case heard by the Royal Court which concerned an application to appoint the representor as trustee of an employee benefit trust.