Who has the authority to deal with the deceased's affairs?


(Terrie Ross) #1

I have been instructed to deal with the administration of an estate. There is confusion as to who the Executors are due to a subsequent codicil. The will states:
“1. I appoint my accountant XXX to be the Executor and Trustee”
The codicil states:
“…the Will shall be construed and take effect as if in clause 1 it contained clause 1a in the form as follows:- ‘I appoint as my Executors and Trustees in respect of my worldwide assets (and for the avoidance of doubt any asset I may own in [foreign country])- my children [names 4 children]’”
It is not clear what the deceased’s intentions were with regards the appointment of executors. The accountant believes the deceased felt it was wrong to exclude the children and therefore the purpose of the codicil was to appoint the accountant and the 4 children as executors. One of the children believes the purpose of the codicil was to appoint the children as the executors for the assets held in the foreign country only because there was insufficient time for the deceased to make a will in that country. I should add, I get the impression that if all 4 children are appointed as Executors there is a risk that disputes will arise.
If necessary, to avoid any family disputes, the accountant has reluctantly agreed to act as the sole executor. It is not clear whether all of the children would agree to this.
Regardless of the accountant’s agreement, it is my understanding that this matter should be referred to the District Judge or Registrar for guidance. Am I correct? Does anyone have any experience where there has been doubt about the construction of a will in terms of the appointment of executors?
Any help on the ways to deal with this would be appreciated.

Terrie Ross
Bobbetts Mackan Solicitors


(Julian Cohen) #2

Yes, this is a case for a Chancery Counsel to advise. You need to get four statutory Declarations from the children (and one from the accountant) put them all in front of Counsel, let him advise you and go for probate on that basis.

What a shame the testator didn’t go to a solicitor when making his Will.

Julian Cohen

Simons Rodkin


(andrew.goodman) #3

If the foreign country is one where the four children will simply inherit in equal shares (as in most of Europe), the desired intention must be that they are the sole execs for that country - having a non-heir executor can make life much more difficult because for many purposes they will just be ignored.

I don’t see any way to construe the Will definitely (it’s just wrong) so I would have thought the best solution is any made by agreement of the five - and then try to achieve buy in from a friendly registrar - at least for the UK.

For the reasons mentioned above, it may be effectively irrelevant in the foreign country (ies) - other than any need to recover foreign assets to pay UK IHT on them.

At the risk of stating the obvious, I don’t suppose there was a professional involved who can at least tell you what he or she was trying to achieve.

Andrew Goodman
Osborne Clarke LLP


(Paul Desmond Doherty) #4

I take it that the Testator did not formally appoint the children at the relevant time, only his accountant. It seems therefore that until such time the children agree to act as Executors and/or whether a Codicil is legitimate method of execution, I would think that a referral to Counsel /Court would be my first step.

Paul Desmond Doherty