Power of court to pass over prior claims to grant.


(John Cartlidge) #1

Divorced deceased died naming sister sole executor and beneficiary. Said sister lives in the US and is in poor health. The estate in England requires much ‘hands on’ administration (several properties, business interests, cars, debts…)

Email / phone discussion on subject of sister appointing solicitor to act and take grant however she herself has now taken seriously ill, and whilst fit enough to appoint attorney, a practical viewpoint is her life expectancy is short and so (it is believed) the attorney appointment would cease on her death.

A better solution would perhaps be for the solicitor to take the grant of Letters of Administration with will annexed (without attorney appointment)

Supreme Court Act 1981c. 54, Part V: Powers of court in relation to personal representatives, Section 116: Power of court to pass over prior claims to grant.

Thoughts?

John Cartlidge
Campion Solicitors


(saraharundel) #2

What about application for a Grant ad colligenda bona?

Sarah Arundel
Taylor Fawcett


(John Cartlidge) #3

Thank you for the suggestion and will have a read up. At present thinking is towards the S116 with supporting affidavit from the executor, but your suggestion may be less demanding upon the named executor.

John Cartlidge
Campion Solicitors


(Charles S J Fraser) #4

I have previously taken counsel’s opinion regarding attorney grants, and the opinion was that if a grant has been obtained for the use and benefit of another (ie an attorney grant), then the death of the donor of the original power of attorney does not affect the validity of the grant that has been obtained.

On this basis if the sister has sufficient capacity to appoint an attorney then providing the grant is obtained before her death then it will continue to be valid even after her death.

Charles Fraser
Longmores Solicitors LLP


(jbennell) #5

If I understand you correctly, your counsel’s opinion appears to directly contradict the authors of Tristram and Coote. The thirty first edition states at 11.102 ‘Knowledge of the death of the donor debars the attorney from acting further under his grant. If part of the estate remains unadministered, a de bonis non grant will be required to complete the administration.’ That has always been my understanding of the position.

Mrs J E Bennell
RLK SOLICITORS LTD