Appointment of Substitute Executors

Trusts Discussion
1

I wonder if someone might be able to lend their thoughts to this matter.

We are dealing with an Estate. In the Will it states “If my wife X shall survive me then but not otherwise I give devise and bequeath my real and personal estate whatsoever and wheresoever unto my said wife and appoint her sole Executrix of this my said Will”.

The next clause reads “ If my said wife shall not survive me then and in any such case, subsequent clauses of this my Will shall take effect in lieu of Clause 2 hereof”.

The next clause reads “I appoint A,B and C to be the Executors and Trustees of this my Will”.

The facts of this case is that the testator was survived by his wife, but she died in quick succession, and so the entire of testator’s estate will pass to his wife, but, there is no Executor appointed, strictly on the wording of the Will, A, B & C only come into effect if the wife survives.

Are the Probate Registry likely to regard A, B & C as able to take out a Grant of Probate, or, will this be a Grant of Letters of Administration with Will annexed?

If the latter, then how would that work given that the wife is the residual beneficiary of the testator?

Any guidance will be appreciated.

Kind regards.

Martyn J Dixon

Harold Bell Infields & Co

2

My view is that this will be a Grant of Letters of Administration with Will annexed de bonis non. As W did not obtain a Grant in H’s estate my understanding is that the chain of representation is broken. If that is right it will be the executors of W (once they have obtained a Grant in her estate) who will then need to apply for a Grant de bonis non in H’s estate to enable his estate to be dealt with and assets transferred to W’s estate.

3

Presumably there is no survivorship clause in the Will?

4

If you mean a clause which stipulates how long the spouse needs to survive by, then I am afraid not.

Kind regards.

Martyn Dixon

Harold Bell Infields & Co

5

I agree with Sarah. The chain of representation applies.

6

On this subject, I now have the Grant of Probate for the wife’s estate. Would you appply for the GoLoA with Will annexed de bonis non using the PA1A or PA1P form. I am minded to use the latter, given that there is a Will.