When someone who has made a will dies, their estate is administered by persons appointed by the testator in their will, albeit that those persons so appointed (known as executors) have the right to refuse to accept the appointment. However, the position is different when it comes to administering the estate of someone who dies without making a will, i.e. intestate. In these circumstances, their estate will be administered by an administrator, but who has the right to apply as administrator? That is determined by way of the intestacy rules, which set out an order of priority of persons entitled to apply. Although it sounds straight forward, sometimes issues can be caused where two or more persons appear to be equally entitled to apply and/or there is a dispute as to whether one party is suitable to be appointed. In these circumstances, it is often necessary for the court to decide who should be appointed. This was the position in the recent case of King V King .
Applying for a grant of letters of administration
Rule 22(1) of the Non-Contentious Probate Rules 1987 (“the Rules”) sets out the order of priority by which persons are entitled to apply for a grant of letters of administration in an intestacy case. The list of priority is as follows:
The surviving spouse or civil partner;
The children of the deceased and the issue of any deceased child who died before the deceased
The parents of the deceased;
Siblings of the whole blood and the issue of any deceased sibling of the whole blood who died before the deceased;
Siblings of the half blood and the issue of any deceased sibling of the half blood who died before the deceased;
Uncles and aunts of the whole blood and the issue of any deceased uncle or aunt of the whole blood who died before the deceased;
Uncles and aunts of the half blood and the issue of any deceased uncle or aunt of the half blood who died before the deceased.
A case example
Eric Sidney King died on 15 April 2021. He died intestate. Eric was divorced. He was survived by two of his three children. Accordingly, the entitlement of a grant belonged equally to the two surviving children, Stephen and Philip.
By an order dated 11 July 2023 the district probate registry in Newcastle ordered that letters of administration should be granted to one of his sons, Stephen. Pursuant to that order a grant of letters of administration was issued to Stephen on 7 August 2023. This was on the basis that Stephen’s application was supported by most of the beneficiaries, Eric also being survived by various grandchildren and was the first in time received. Philip sought to challenge that decision and the matter came back before the High Court by way of an appeal.
Orders which the court can make
Where there is more than one person with equal entitlement rights the court has a discretion as to which of those individuals to appoint as administrator. Unless a minority or life interest arises, it may appoint a single member of the class or appoint a number of them up to a statutory maximum of four persons. Alternatively, the court may seek to appoint an independent administrator, usually a professional person, to act as administrator. The court is entitled to do so having regard to the provisions of Section 116 of the Senior Court Act 1981 (“the Act”).
Section 116 provides:
“If by reason of any special circumstances it appears to the High Court to be necessary or expedient to appoint as administrator some person other than the person who, but for this section, would in accordance with probate rules have been entitled to the grant, the court may in its discretion appoint as administrator such person as it thinks expedient.”.
For the court to exercise its powers under this section it must be satisfied that there are “special circumstances” which render it “necessary or expedient” to pass over the person or persons entitled to the grant.
Matters to take into account when exercising its discretion
When exercising its discretion as to who to appoint the court has regard to a series of factors including:
Objections based upon an applicant’s characteristics which render them unsuitable to act as an administrator. These may include dishonesty, bankruptcy, insolvency or ill health which prevent them from being able to carry out the necessary tasks;
Objections based upon a conflict of interest between the applicant and the estate. Conflicts may arise in a number of different ways;
A general practice that, in cases of dispute, the view of those entitled to the larger share of the estate should be preferred, although the court is not bound to follow this practice;
A practice, where there are competing applications and nothing else to enable the court to choose between them, to prefer the first application that has been received; and
Factors such as the views of the beneficiaries, although the weight that this may carry may be greater in one case than another.
Ultimately, in making its decision, the overall interests of the beneficiaries of the estate are of paramount importance. Whilst the estate should be administered properly and in accordance with the law, it should equally be administered efficiently and at a reasonable cost that is proportionate to the size of the estate. Administration by an independent professional administrator will inevitably prove more expensive than administration by a lay administrator and this is an additional factor which the court must take into account.
Following receipt of the probate registry’s order that a grant of letters of administration should be issued to Stephen on the basis that, Philip issued a summons for appeal on numerous grounds, the most significant of which were:
That Stephen was dishonest. Philip alleged that Stephen had overvalued Eric’s freehold property in Luton in order to attempt to seek a rebate as regards the payment of inheritance tax in the future for his own personal gain.
That Stephen had a conflict of interest. Philip asserted various reasons for alleging that Stephen had a conflict of interest but the two major allegations were the fact that Eric’s estate had a potential claim against Stephen’s son for recovery of monies which he had allegedly fraudulently acquired from his grandfather and that Stephen was living in Eric’s property rent free.
That Stephen had misconducted himself such that he was not suitable for appointment as an administrator.
Stephen opposed the appeal and sought an order that the issue of the grant to him be upheld. Stephen alleged that Philip had been estranged from Eric for many years and that he was sending numerous emails every day to Stephen in relation to the administration of the estate demanding that Stephen do exactly what Philip wanted as regards the same.
The judge was faced with three options.
He could uphold the appointment of Stephen as administrator;
He could appoint Philip as administrator in place of Stephen; or
He could pass over the claims of both of them and appoint an independent professional administrator.
The judge’s consideration of Philip’s allegations
The judge did not consider that there was any merit in any of Philip’s allegations levied against Stephen. The alleged overvaluing of Eric’s property did not, in the judge’s view have any adverse effect on Eric’s estate. The property was now under offer and so the original valuation placed by Stephen on the property was no longer of any relevance.
As to the position regarding Eric’s estate’s alleged claim against Stephen’s son, he was now residing in Australia. The sum in question was only £5,000.00 and the costs of pursuing any action, even if such action had merit, would be disproportionate to the sums outstanding and did not therefore represent any conflict of interest on Stephen’s part.
Likewise, as regards Stephen’s occupation of the property, this had only been for a short period of time and he had confirmed that he would vacate the property upon sale so would not be a long-term issue.
The judge’s views as regards the options
In so far as options 1 and 2 were concerned, the judge confirmed that he was clear he should not appoint Philip. He stated that he did not consider Philip was capable of undertaking the task of administrator in a proportionate or constructive manner. The number and nature of complaints raised by Philip had demonstrated to the judge that, although no doubt a clever man, he had no ability to discriminate between the important and the unimportant, the relevant and the irrelevant or between the good point and the bad. Taking matters as a whole he considered it would be wholly wrong and contrary to the interests of the estate as a whole to appoint Philip.
As to Stephen, the judge stated that the principal advantage of leaving him in place was that Eric’s estate was relatively modest and may yet need to be divided among a relatively large number of beneficiaries. The assets in the estate were limited and the steps required to realise and collect in the estate relatively straight forward. The property in Luton was already on the market for sale and was now under offer, subject to contract. Steps had also been taken to obtain a grant in St Vincent in order to market the foreign property for sale. Keeping Stephen in place would therefore ensure that the administration of the estate was not slowed down and would keep the costs to a minimum.
As against that, however, the judge considered there was some advantage in appointing a professional administrator as it would remove the administration of the estate from any one branch of the family. The judge considered that the involvement of an independent professional who could objectively assess the claims of various individuals, whilst undoubtedly increasing costs, was likely to reduce the need for contentious litigation and may also reduce the likelihood of other aspects of the administration being challenged in the future, thus avoiding further litigation.
Taking all matters into consideration, the judge concluded that in the interests of the estate and the beneficiaries as a whole this was a case in which special circumstances made it necessary and expedient to pass over the claims of both Stephen and Philip and to appoint an independent professional administrator pursuant to the provisions of Section 116 of the Act.
The judge had invited both Stephen and Philip to provide names of independent professionals who each of them would consider appropriate to be appointed. Only Stephen had done so. He had provided the name of two firms, both of whom were willing to act, of which Stephen had indicated a preference to Mr Adam Draper of Rothley Law Ltd. Stephen had provided signed written consent from Mr Draper to act together with a statement of suitability in relation to him. The judge confirmed he was happy to issue the grant to Mr Draper.
Accordingly, he made an order setting aside the probate registrar’s order made in July 2023 revoking the grant of letters of administration to Stephen and directing that a grant be issued to Mr Draper.
This case usefully illustrates how a court will consider all potential options when there is a dispute as to who should be appointed as an administrator. In this case, although the court did not consider that any of Philip’s allegations held any weight and leaving Stephen in place would undoubtedly have resulted in significant costs savings for the estate, the judge still ultimately decided that it would be in the interests of the estate and the beneficiaries for an independent professional administrator to be appointed.
Do you need legal advice?
If you are an administrator or potential administrator faced with a dispute as regards entitlement to be appointed/remain appointed or alternatively, wish to consider bringing such a claim and would like to receive legal advice in relation to the same, please contact our Dispute Resolution team today on [email protected].
Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.