Opposing a Grant of Representation
There are several situations prior to a Grant being obtained that can give rise to a dispute about who should administer an estate, for example:
there is an existing a Will, but it fails to appoint an executor to administer the estate;
there is an existing Will, but the named executor has predeceased the testator or renounced their executorship;
there is no Will meaning the deceased has died intestate;
there is a dispute about the validity of a Will;
there are concerns surrounding the person entitled to administer the estate, by the Will or intestacy rules, owing to their personal situation, such as conduct, honesty and integrity; mental capacity; and/or a conflict of interest between their own interests and the duties that they owe to the estate of the deceased.
Once a Grant has been obtained a dispute can also arise because the personal representative:
is endangering the estate assets by poor or incompetent financial decision-making; and/or
has delayed administering the estate or has done so incorrectly.
Where an interested party, usually a beneficiary, has any of the above-listed concerns, it is possible to oppose the Grant appointing the executor or administrator as the personal representative of the estate.
There are two circumstances in which a party may wish to oppose a Grant:
Pre-Grant – before an executor or administrator has obtained a Grant which appoints them as the personal representative of an estate; and
Post-Grant – after an executor or administrator has obtained a Grant which appoints them personal representative of an estate.
The methods by which an interested party can oppose a Grant will differ depending on whether the Grant has already been obtained or not.
Opposing a Personal Representative – Pre-Grant
Section 116 of the Senior Courts Act 1981 contains a power for the High Court to “pass over” claims by anyone entitled to apply for a Grant. What that means is that the court has discretion to appoint another person, thereby “passing over” the role to someone else who is entitled to apply for the Grant.
Anyone wishing to oppose the Grant must make an application to the court setting out the reasons for the application, including evidence that supports their case. This is usually done by way of an affidavit. In some circumstances it may even be appropriate to make this application without notice to the person currently entitled to obtain the Grant.
Section 116 will be of use where potential personal representatives are unable to carry out their duties or their conduct has already demonstrated that there is cause for concern. Common reasons include:
the person entitled to the Grant is considered unfit or inappropriate to act or the estate may be at risk, eg because of previous financial dealings or bankruptcy or mental ill-health;
the person has been found guilty of murder or manslaughter against the deceased;
a Grant is required to enable proceedings to be issued against the estate or under the Inheritance (Provision for Family and Dependants) Act 1975;
the persons entitled have renounced probate and there is no one else willing and able to act;
the person entitled cannot be traced despite extensive enquiries; and/or
the persons entitled are in dispute with one another or have a conflict of interest – in this situation the court may “pass over” their entitlement in favour of someone completely independent.
Opposing a Personal Representative – Post-Grant
Section 50 of the Administration of Justice Act 1985 gives the High Court power to terminate the appointment of a personal representative and/or replace them.
There is no specific test that needs to be met for the removal and/or substitution of a personal representative, however, the courts will always consider whether making an order would be in the best interests of the beneficiaries.
A section 50 application is useful where a party is alleging a failure to administer an estate or where there has been alleged maladministration.
If you have recently lost a loved one and find yourself in need of help either because no one has been appointed to administer the estate and you do not believe the person so entitled would be a good fit for the role, or you are unhappy with the way the person acting as personal representative has been handling the estate administration, contact Thompson Budd today. We understand this is a difficult time and fighting with the person responsible for winding up your loved one’s estate is an unnecessary added upset. Our aim is to help you find a suitable resolution as quickly and cost effectively as possible so that you have more time to focus on healing.