Resolving Personal Representative issues using S116 Senior Courts Act 1981

Author: Senior Probate Executive Kerensa Cooper

There are many reasons why an estate administration may be delayed especially with the unusual circumstances that can often arise in the Charity sector. It can be especially challenging where the Executor or other person entitled to deal with the estate has not taken steps to move forward. The beneficiaries are left frustrated by lack of progress or risk of loss to the estate caused by the delay.

S116 Senior Courts Act 1981 gives the High Court a discretionary power to make an Order to pass over an Executor appointed by the Will or some other person entitled to a Grant as a Personal Representative (PR). The power of the Court is flexible and any grant obtained as a result of the Order may be limited to enable specific tasks to be carried out or for the applicant to administer the estate fully, depending on the application made.

 An application under S116 can be made where:

• A Grant has not already been obtained in the estate;
• There are special circumstances;
• It is necessary and expedient to appoint someone other than the PR to act as an administrator.

The overriding concern of the Court is whether the estate administration is being carried out properly and if it is in the best interests of the beneficiaries to pass over the PR.

Who can apply?

Often, the applicant for the Order will be one or more of the beneficiaries of the estate who have a vested interest in getting the estate administration moving along. Where a number of Charities benefit, they can agree who will apply and take on the role of PR if the application is successful.

On what basis can an application be made?

The applicant will need to satisfy the Court that an Order is needed by providing evidence of the special circumstances and explaining why it is necessary for the PR to be passed over. Often the Court will look at a combination of factors when making their decision. It is important for the applicant to have considered any alternative remedies beforehand and explain why these have not worked.

Some examples of when s116 could be considered are:

• The PR is missing or cannot be traced:
  • Professional Executor who has been struck off by the Solicitors Regulation Authority and not traceable
  • PR last known to be residing overseas and believed to have died
  • Costs/delay of tracing PR would be prohibitive in context of estate as a whole;
• Unsatisfactory delay in the existing PR administering the estate and risk to the estate as a result;
• Executor has intermeddled but has not made satisfactory progress with estate;
• Incapacitated PR who does not have anyone appointed under a power of attorney to act or renounce on their behalf;
• There has been a breakdown in communication between the PR and the beneficiaries;
• Resolving a dispute about disposal of the body.

It is not necessary to prove wrong-doing or fault by the existing PR, although clearly that would also be grounds to apply to pass them over.

How is the application made?

In non-contentious cases, an application under S116 is made under Rule 52 of Non-Contentious Probate Rules 1987 to the Registrar supported by an affidavit or witness statements setting out the grounds for the application. If sufficient grounds are shown, the Order will be made and the applicant can proceed with applying for a grant in the estate.

Summary

Charities often come across situations where they benefit from an estate and it is necessary to consider stepping into the role of PR. There can be uncertainties around how to move forward if there is an existing Executor/PR or there are concerns about what the PR is doing. An application under S116 is one option although it may not be appropriate in all circumstances and is sometimes considered as a last resort when all other options have failed.  If a Grant has already been obtained in the estate, s116 cannot be used but an application under s50 Administration of Justice Act 1985 may be appropriate instead.

How can we help?

Our Charity Probate team has extensive experience in helping Charities decide how to resolve issues with PRs. Sometimes, relations with the PR can be restored so that an application under S116 is avoided but, if all else fails, we can help manage the transfer of the PR role as smoothly as possible. Please contact a member of the team if you would like further information.

Author: Senior Probate Executive Kerensa Cooper