One of the frustrations for litigation lawyers who come across executors who are clearly acting unlawfully is that removing executors is often out of reach due to the expense of taking such a step.
This article will look at two less expensive ways to put pressure on executors:
- Inventory and account
Citations are a good tactical way of attempting to force a dilatory executor into action, or to entitle someone else to administer the estate.
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There are two main types to consider:
(A) Citation To Accept or Refuse a Grant
This applies where an executor:
- has not intermeddled and cannot be persuaded to renounce; or
- Is taking no steps to obtain a grant of probate
He can be cited by the person next entitled to a grant to accept or refuse probate (Non-contentious Probate Rules NCPR r.47(1)).
If the executor fails to appear or apply for a grant, the citor is entitled to apply for a grant to himself (NCPR r.47(5)(a); 47(7)(a)).
(B) Citation To Take A Grant
This applies where an executor has:
- intermeddled in the estate (so that renunciation is impossible), or
- Has not taken a grant within six months of death
He may be cited by any person interested in the estate to show cause why he should not be ordered to take a grant (NCPR r.47(3)).
If the executor fails to appear or apply for a grant, the citor may apply for an order requiring the executor to take a grant (if such an order is made and breached, the executor will be liable for committal), or for a grant to himself or someone else (NCPR r.47(5)(c); 47(7)(c)).
Before any citation is issued, a caveat must be entered in respect of the estate and no court fee applies.
Citations are a nice form of legal action as they are quite targeted, can put the executor under pressure and force him or her to start dealing with the Court. Even with the most difficult executor, do not underestimate the fear which an executor can have when faced with specific Court action.
What is the Procedure?
A citation of any type may be issued by the Principal Registry or by a District Registry and must be settled by a District Judge or Registrar. (NCPR 1987 Rule 46 (1)). The application for the issue of a citation may be made in person or by post. Everyone with an interest in the document should be cited.
An affidavit should not be sworn before a citation is settled so that it can be corrected if it does not cover the required facts. Every Will or purported Will referred to in a citation must be filed.
A citation must be served personally unless otherwise directed (NCPR, Rule 46 (4)). A Certificate of Service should be endorsed.
A person who has been cited then enters an appearance at the Registry from which the citation is issued by lodging Form 5 to the NCPR.
The form sets out the name, address and interest claimed by the citor as shown on the citation. It should also give the full name, address, and details of the interest of the citee himself, including the date of the Will under which such interest arises.
The citee must serve a sealed copy of the appearance on the citor by delivering it at the citor’s address for service; or, by sending it there by post or otherwise. The time for appearance is 8 days after service of the citation, but it can be extended.
Inventory And Account
From experience, a route which can be much less expensive but effective in putting pressure on the executor is to request an inventory and account.
It can be done at any point once probate is obtained so cannot be used pre-grant.
It is the quickest way to compel a lazy or uncommunicative executor to account for his activities. You apply for an order that he exhibit an inventory and account in respect of the administration (see Administration of Estates Act 1925 s.25(b)).
Why I Like Inventory and Account
- It is a relatively low risk application. Unlike other court actions such as removal of executor which are not certain to win despite the evidence, it is clearly defined. As a consequence, there is little downside to making the application and less stress for the client to go to Court.
- It will obtain useful information whatever, which can provide a springboard for further steps to be taken against the executor. One of the frustrations of dealing with an executor is that there is no obligation to disclose their work until the end of the process when estate accounts are produced. With Inventory and Account the executor must provide the information requested and you see a paper trail. If something dodgy is going on, you should find out. If not, you have not necessarily wasted time on other expensive legal action.
- You should get the Court date quickly. As the application is short you do not have to wait a long time (e.g more than nine months to get a final court date) to go before the Judge. Resolution is therefore relatively quick.
- It is not expensive. Unless you and your solicitor want to burn money, the Court step is not that costly and does not have a large Court fee as well. All you must pay for are the legal fees and an affidavit to be sworn in front of a solicitor (say £10). Compare that to other court stages in an era when there is a deliberate strategy from the government to get money in via court fees.
- It shifts psychological power away from the executor and to the beneficiary. Whenever I have used this application with success (and it has always been successful for me), it has shifted the inter-play with the executor and put him or her on the defensive. No executor likes to disclose bank accounts and/or have costs awards made against him or her. Here the executor finds himself under pressure and subject to potential scrutiny from the Judge. If you have done something illicit or have something to hide, you do not like this despite the targeted nature of the application.
What is the Procedure?
Prepare a Summons which is sent to the High Court together with a supporting affidavit (NCPR r. 61).
The Court will send back the sealed summons which you will send to the Respondent and you will need to produce evidence of service to the Court.
What are the Final Practical Points?
- Ensure that you send, or your client has sent a Letter Before Action requesting the inventory and account prior to sending out the application, otherwise it is possible a Registrar could take the view the application is premature.
- Ensure that your client has a legal interest within the estate. A case from 1797 (Myddleton & Rushout) is cited as establishing the right of beneficiaries to request information at any time. There are a number of parties who have the right to make a claim including a beneficiary.
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