But I Want To Be Executor! Passing-Over Applications And The Question Of Court Vs The Probate Registry?
Who takes on the role of Personal Representative is a very emotive issue within families upon the death of a loved one. Often, their passing exacerbates existing tensions, and can easily lead to disputes.
Whilst the role of Personal Representative is largely administrative and thankless (you don’t get paid for it, beyond recovering out-of-pocket expenses!) it can be hard for those grieving the loss of a loved one not to feel “shut out” if other family members have been appointed to deal with the estate.
The decision about who becomes the Personal Representative(s) is not one that affects the inheritance: the Will, or the intestacy rules, decides that. Despite this, however, families are all too often at war over who sells the house, gets hold of the money, and distributes it to the beneficiaries.
This is particularly the case where more than one person is able to be appointed as Personal Representative. This “multiple candidates” scenario typically arises in two ways.
The first possibility is that there is a Will which appoints two or more people as executors. In many cases, the appointed executors will all simply accept the role and apply for a grant of probate together. There is, however, no obligation on any executor to accept the role; or on the appointed executors to work together.
In the former case, an unwilling executor may file a written "renunciation" or may decline to respond when "cited" to accept a grant of probate. In the latter case, one or more of the appointed executors may apply for probate without the involvement of the others (whether having given notice of their intentions or not). If that happens, the grant of probate will reserve a power to the non-proving executors to prove the will again in a so-called "grant of double probate". Until they do so, though, the non-proving executors will hold the role in name only, having none of the accompanying powers to administer the estate.
The second possibility is that there is no Will – i.e., the person died intestate. In that case, the Non-Contentious Probate Rules 1987 (“the NCPR 1987”) set out a “waterfall” of persons entitled to a grant of letters of administration: see Rule 22. Where the deceased was widowed or unmarried, it is the children who are equally entitled – and with no requirement to apply together, it can become a race to obtain a grant.
In such situations, often two or more parties each individually apply to one of the Probate Registries to be appointed as the Personal Representative. The Registrar is then faced with two competing applications which, especially if accompanied by caveats (blocks on probate), often leads to an impasse. Nothing can happen until the parties agree, or a Judge makes a decision.
How to unlock the impasse
As ever, the parties are encouraged in such a situation to talk to each other – either directly or through solicitors. In many cases, the process of discussing, if not resolving, the conflict – and the underlying tensions – can lead to a pragmatic approach being taken, and escalation can be avoided.
Unfortunately, this is not always the case, however, and sometimes discussion, correspondence, and even mediation cannot result in an agreement as to the way forward.
At this point, litigation, ever a last resort, becomes inevitable. The parties need to have a Judge decide.
The available routes
A person faced with a “multiple candidates” situation has two main routes available to them. They can either:
- Issue a summons in one of the Probate Registries, and ask a Registrar or District Judge to make a decision on the “dispute between persons entitled to a grant in the same degree” (see Rule 27(6) of the NCPR 1987); or
- Issue a claim in the High Court, and ask a Master or High Court Judge either to “pass over” an executor or someone who is entitled to a grant of letters of administration (see Section 116(1) of the Senior Courts Act 1981) or to remove an executor or administrator who is already in place (see Section 50 of the Administration of Justice Act 1950).
Historically, issuing a summons in the Probate Registries was considered the more attractive route for a variety of reasons:
- The Judges sitting in the Principal and District Probate Registries have effectively the same powers as the Judges sitting in the County Court and High Court and, moreover, deal with disputes of this nature all the time, rather than with the entire gamut of civil litigation (in the County Court) or family and chancery litigation (in the High Court).
- Additionally, the process in the Probate Registries has typically been more efficient, not to mention cheaper: there is no fee payable for issuing a summons, and the Probate Judges often deal with matters on the papers (i.e., without a hearing).
By contrast, the County and High Courts have long been seen as clunky and slow in comparison. A contentious decision will almost exclusively be listed for a hearing, requiring the cost of a hearing to be incurred and barristers instructed. A hearing might take several months to list, and can even be vacated at the last minute due to other issues at the Court. There is also a Court fee to pay. Costs of such an application can easily be double, or more, that of the paper Probate Registry process.
Typically, therefore, issuing in the Probate Registries has been faster, cheaper, and more reliable in terms of outcome – much more appealing, in short, to litigants who are still grieving the loss of a loved one. However, practitioners should be aware that the differences between these routes have decreased over the last few years, and the Probate Registries are no longer the arbiter of swift, efficient justice that they may once have been.
So, so slow: Practical Reasons for preferring the Court
The Family Courts Statistics Quarterly published on 28 September 2023 revealed that between April and June 2023, probate grants took approximately 14 weeks to be issued after the application was submitted, and a Grant of Letters of Administration with a Will and without a Will took around 23 to 18 weeks respectively. A recent survey conducted by the Council for Licensed Conveyancers suggested that 70% of probate practitioners were waiting in excess of 10 weeks for a Grant of Probate, with more than half saying it was taking longer than 19 weeks. Due to cost cutting measures across HMCTS over the last several years, the efficiency of the Probate Registries has fallen to an all-time low. (In fact, in late November Parliament’s Justice Committee actually went as far as to open an inquiry into the probate process, in the context of mounting concerns over delays in the time taken to process applications. Written submissions are invited by 22 January 2024.)
The sluggishness which has crept into the whole Court system, but particularly the Registries, means that applications are not being issued and sent to Registrars, decisions or directions given by those Registrars are taking a painfully long time to reach the parties, and trying to list and hold a hearing can take months.
One of the writers even has personal experience of being denied access to the Leeds District Probate Registry for a hearing by security staff on the basis that members of the public were not allowed to attend the Registry face to face there!
In a current litigation world where a passing-over application in the High Court can be issued under the expedited Part 8 procedure, and listed for disposal – depending on location – within 8 and 12 weeks, this makes the High Court in particular a far more enviable destination, even if the cost is without doubt greater.
Finality of litigation: Legal Reasons for preferring the Court
Furthermore, the recent case of King v. King [2023] EWHC 2822 (Fam) has shone a light on a previously obscure procedural loophole which makes litigating these issues in the Probate Registries even less appealing.
When a Judge in the High Court makes a decision, that decision is binding upon the parties subject to quite tightly qualified rights of appeal – and if a party succeeds in obtaining permission to appeal, the appeal hearing is almost always limited to a review of the Judge’s decision-making, rather than a full-blown re-hearing of the case on its merits.
This is not the case for the Probate Registries. When decisions are made by a Registrar or District Judge in those venues, the disappointed party has the right to an appeal before a High Court Judge: see Rule 65 of the NCPR 1987. Moreover, due to a glaring failure to update the relevant procedural rules, that appeal process is governed by the Rules of the Supreme Court 1965 (“the RSC 1965”) – i.e., the procedural code which regulated civil litigation before the introduction of the Civil Procedure Rules 1998.
This has the remarkable consequence that an appeal under Rule 65 remains to this day (i) available as of right (because there is no permission filter under Order 58 of the RSC 1965) and (ii) by way of full re-hearing rather than review. This means that no matter how well-won the victory was, how much cost was involved, or how unreasonable the conduct of the losing party, that losing party can automatically require the matter to be dealt with all over again by a High Court Judge – who will assess the case afresh and make whatever decision seems appropriate to them (whether or not either of the parties asks for it).
This right to a re-hearing is not often seen but was highlighted in King v. King (where the Judge vividly described it as “a living legal fossil, to be compared to the coelacanth”). In that case, two brothers, Stephen and Philip, were at war over who should be the Personal Representative of their father’s estate after he died without leaving a Will. Each of the brothers applied for a Grant in their own names. An impasse was reached. One of the brothers applied by a summons in the Newcastle District Probate Registry and, after an exchange of various written submissions, the District Probate Registrar made an order appointing Stephen as Personal Representative.
Stephen thought he had won the case, until Philip sought a re-hearing under Rule 65 of the NCPR 1987 (as was his right) before a High Court Judge. This relatively simple legal decision was then placed in the list of the Family Division of the High Court in London, to be heard for a full day in front of a High Court Judge.
In the event, the Judge assessed the case afresh and, using the options available to him, decided that neither of the brothers should be the Personal Representative and that, notwithstanding the expense, an independent administrator should be appointed instead. Neither of the brothers got what they wanted – and had to go to the cost (and cost risk) of two decisions, rather than one.
Conclusion
Although an interesting decision on the specific facts of the case, the point of more general importance to draw from King v. King is the availability of a re-hearing as of right from decisions of Registrars or District Judges in the Probate Registries. Finality is a crucial attribute of any dispute resolution mechanism, but there is a significant risk that summonses in the Probate Registries will end up being heard twice, with meaningful finality only achieved on the second occasion (and with all the added costs that entails).
Accordingly, considering both the increasing delays in the Probate Registries and the real risk of a disappointed party requiring a full re-hearing (as the NCPR 1987 currently allow), grieving families should give real thought to “biting the bullet” and applying straight to the High Court: sadly, as matters stand, the Probate Registries are no longer well placed to give a prompt and robust answer to the question of who should act as Personal Representative.
This article was written in collaboration with Chris de Beneducci of Selborne Chambers.
