Part Intestacy with a grant of probate issued

Trusts Discussion
1

We have researched a bona vacantia case where the person who died left a legacy which failed and it has fallen back into residue to be distributed according to the Administration of Estates Act 1925. The executor of the deceased persons estate is a live but the administration of the estate was done by a firm of solicitors. It would seem that when the person died that either they chose not to or were advised not to instruct a firm of genealogists to locate the missing beneficiaries. They paid the balance of the money over to the treasury solicitors, where it has sat since the company that I work for picked up and did the research to locate missing beneficiaries. The deceased father was one of 13 issue, and they all go back to the mid 1880, so you can imagine the size of the family tree.
The estate that was advertised on the treasury’s website advised that you had to contact the solicitors who dealt with the estate, which we did and they have accepted the claim, the solicitors have the money transferred to them from the treasury and currently have that sat in one of their accounts. They will not release the money they are saying until missing beneficiary insurance has been taken out or another grant to administer the estate is applied for and granted. We applied to Oxford registry for a second grant (a grant de bois non) to administer the failed gift, but as the existing executor is alive Oxford have informed us that it is the executors responsibility to distribute the estate.
All we want to is for the firm of solicitors to pay over the money from the failed legacy so that we can distribute it. We have found out of the 13 that there are only 7 branches that have issue alive and entitled so the maximum amount each branch would receive is approx £3k,

What I would like to know is should the solicitors that acted on behalf of the executor pay for any missing beneficiary insurance due to them not fulfilling their responsibilities right in the first place.
Should the original executor seek independent legal advise from another firm other than the one that dealt with the original administration to get independent advice on the situation.
Is there any case law or preseidence set somewhere that can be quoted to resolve this situation

David Griffiths
A2Z Probate Research Ltd

2

The solicitors are not the executor so (a) can only act on instructions from the executor - payments out without instructions would be a major breach of the accounting rules; and (b) they are unlikely to owe any duties to the beneficiaries.

It is odd that somebody went to all the trouble of obtaining probate and then immediately gave up.

The legal solution is for the beneficiaries to demand their share of the estate from the executor (via the solicitors) - at which point he/she has to make a decision. It is not for the beneficiaries to take out any insurance or for the solicitors to take any decisions themselves.

If the solicitors have acted improperly then it is really for the executor to make a claim against them - in practice it doesn’t look like you know where fault lies at the moment. At best, the beneficiaries can claim against the executor for delay but you would need to identify some specific loss caused by the delay and check that he is not protected by the terms of the will.

Andrew Goodman
Osborne Clarke LLP

3

Thank you Andrew for the reply that does make things a bit clearer for us now, and how we progress to get to this hopefully sorted once and for all.

David Griffiths
A2Z Probate Research Ltd