What are you looking for?

4 June 2013 | Comment | Article by Roman Kubiak TEP

Not just a walk along a beach in Mauritius

Every so often, a case comes along that every lawyer wants to get their teeth in to as a result of the legal arguments and issues that arise; never mind the possibility of a trip to Mauritius!

I recently advised a client, who, for the purpose of this article, I will call “Alan”, in respect of his late father’s estate. The deceased, let’s call him “Bob”, passed away having left a myriad of family and assets, both in the UK and Mauritius.

In brief, Bob had divorced Alan’s mother around 10 years ago. Bob remarried three years prior to his death; let’s call Bob’s second wife “Carol”. Alan has four full blood siblings and one half-blood sibling (a minor from Bob’s marriage to Carol). Bob and Carol’s marriage was continuing at the date of Bob’s death.

Bob’s assets totalled approximately £1,400,000.

Bob passed away intestate (without a will). In accordance with the intestacy provisions, Carol stood to receive the first £250,000 from Bob’s estate with a life interest in half of the remainder. The six children stood to benefit from a one sixth share of the remaining half of Bob’s estate, with a one sixth interest in the other half upon the termination of Carol’s life interest, i.e. on her death.

Due to the fact that all of Bob’s assets were in his sole name, including the matrimonial home, it was likely from the outset that Carol would seek to make a claim against the estate under the Inheritance (Provision for Family and Dependants) Act 1975 for reasonable financial provision.

The relationship between Carol and Bob’s five children from his first marriage deteriorated following his death. The catalyst for the deterioration in the relationship was due to Carol’s deceitfulness during the early stages of the administration of Bob’s estate.

Alan was aware that £100,000 in cash had been found in his Bob’s property following his death. Indeed, Alan and Carol had counted the cash together, in the property.

Due to a period of inactivity on the part of Alan’s previous legal advisors, Carol instructed solicitors to make an application to appoint herself and a partner at the instructed firm (“XYZ”) as Personal Representatives in the estate.

After becoming aware of Carol’s application, a request was made to XYZ for the production of a set of estate accounts in order that I could advise Alan in respect of what he stood to receive from his father’s estate. It was noted that Carol had not disclosed to XYZ the existence of the £100,000 in cash which formed part of Bob’s estate.

When questioned, Carol continued to deny the existence of the £100,000. It became necessary for me to review what actions could be taken to remove Carol as a Personal Representative in the estate, or prevent her from being able to be appointed in the first instance.

The recent case of Khan v Crossland [2012] WTLR.841sets out very distinctly the differing standards that apply in removing an executor (or Administrator) pre Grant2as opposed to post Grant3.

If you are seeking to remove, or replace, an executor before a Grant of Probate has been obtained, Section 116 of the Senior Courts Act 1981 states that “if by reason of any special circumstances it appears to the high court to be necessary or expedient to appoint as administrators some other person……the court may appoint such other person as it thinks expedient”.

Compare this to the post grant position under Section 50 of the Administration of Justice Act 1985: “where an application is made to the High Court under this section……the court may in its discretion……appoint a person to act as personal representative….[in place of another]”.

The main difference between the two approaches is that when an application is being made post grant, there is no requirement for there to be a “special circumstance” in the case to enable the court to remove a Personal Representative (Executor or Administrator).

The courts’ reasoning is that where a testator has appointed an executor, their wishes should be followed unless there are special circumstances which mean that the executors should be removed. In this case, Carol stepped down prior to going ahead with her application. However, based on current case law, I was confident that any challenge to her appointment would have been successful.

As Kate’s earlier blog demonstrates, the lines between the procedure for the removal of an executor are becoming somewhat merged with more and more practitioners choosing to the s.50 Administration of Justice Act 1985 route to remove executors even before a Grant of Probate has been obtained.

There were a number of other issues brought to light raised in this case, which if commented upon could run this particular article into numerous pages. The issues included:

  • Promissory Estoppel claim by Alan in respect of a business property owned by Bob;
  • Land in Mauritius which had been gifted to Bob’s five full blood children during his lifetime – potential claim by Carol, on behalf of her minor child, that he should also have received the same;
  • Pre nuptial agreement in Mauritius – enforceability in the UK; and
  • Hildebrand documents – secretly taped sound recordings of conversation between the parties discussing the £100,000 in cash.

[1]Section 116 Senior Courts Act 1981.

[2]Section 50 Administration of Justice Act 1985.

Author bio

Roman Kubiak is a partner and head of the market leading Contested Wills, Trusts and Estates team.

He advises across the whole spectrum of private wealth disputes, with a particular focus on high value, complex and cross-border disputes including: trust disputes, breach of trust claims and applications to remove trustees; will disputes, particularly those with an international element; claims under the Inheritance (Provision for Family and Dependants) Act 1975; and claims for equitable relief under proprietary estoppel, constructive trusts and resulting trusts.

Disclaimer: The information on the Hugh James website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. If you would like to ensure the commentary reflects current legislation, case law or best practice, please contact the blog author.

Contact one of our experts

Fill in the form and one of our experts will get in touch with you shortly.