Dear all
I would be grateful for any clarification on the following:
My understanding is that a sole executor (appointed by Will) has authority to act, even where a minority or life interest arises. What is the legal authority for this? Is it s.114(2) SCA 1981?
Thank you for your time!
Very best wishes
Owen
I think they just can because there’s no rule to the contrary. Similarly, if the executor appoints more than one executor, there is nothing preventing just one from taking out the grant alone (the others renouncing or acquiescing).
There are the limits in 114(2) for administrators but I assume the difference is because executors are chosen by the testator and the Courts/law are not going to stand in the way of their wishes.
I assume that the legal authority is that there is no provision to the contrary, such as is contained in the Supreme Court Act 1981 in respect of Grants of Letters of Administration in estates where there is a minority or life interest.
Cliona O’Tuama
Solicitor
I am not aware of any legislation that dictates the minimum or maximum number of executors that can be appointed. Therefore, I think this query may be aimed at the position once the administration of the estate has been completed and the executor becomes a trustee of the minority or life interest. Under s14 Trustee Act 1925, a sole trustee can give a valid receipt for monies arising on the any assets other than land (or interests in land). Capital monies from the sale of land require at least 2 trustees or a trust corporation to give a valid receipt. TA 1925 also restricts the number of trustees that can be appointed where land is held in the trust to a maximum of 4 but there is no such restriction where the trust holds personalty. Thus, it is possible to appoint a sole trustee at the commencement of a trust and for a sole surviving trustee to continue to act. However, if there are two trustees acting, one cannot retire unless a replacement is appointed. If a sole trustee does hold land the an additional trustee must be appointed before the land can be sold. This is exactly the case where land is held as tenants in common by 2 people. When one t-i-c dies the surviving owner of the legal title must appoint an additional trustee before the land can be sold.
Graeme Lindop
Probate Consultant
Coles Miller Solicitors LLP
Dear Andrew, Cliona, and Graeme
Thank you very much for time in responding. I really appreciate your comments.
