Personal representatives
Definition: people who administer the estate left behind by the deceased. Can either be administrator or executor.
Qualities of personal representatives
- Available and willing
- Age – this refers to an adult, someone over 18. An infant can be appointed as an executor but the power would be reserved until they attain majority and then he/she may apply for double probate
- With necessary ability/ competence to manage the estate
- Capacity – no disability, e.g. not lunatics
- No conflict of interest
- All must be willing to work harmoniously
- Person of integrity and honesty
Mode of appointment of executors
- Expressly – This is done appointment clause
- Implied appointment (executor according to the tenor)
- Appointment under power of a will / appointment under power of appointment
- Appointment by the court –where the will was silent as to who should be appointed, there was no appointment, an application can be made to the court. appointment by substitution
- Executor by representation: chain of representation would also break where the last surviving executor died testate but the executors renounce probate
- Executor de son tort (Not PR per se):they are referred to as intermeddler, they usually incur liability. To be an executor de son tort a person must have carried out acts that are strictly the duties of PR’s. An executor can be an executor de son tort where he refuses to obtain probate but continues to administer the estate, at this point after intermeddling he is not allowed to renounce probate.
- He would be liable to account to creditors and beneficiaries as if he was actually appointed an executor
- Liable to account for items he dealt with
Note those disqualified:
- Infant
- Lunatic
- Person found guilty of manslaughter/ murder of intestate
Intestacy
- Monogamous marriage
See s.49 AEL (2004) for the order of priority
- Spouse
- Children
- Parents
- Brothers and sisters of full blood
- Brothers and sisters of half blood
- Grandparents
- Uncles and aunts of whole blood
- Uncles and aunts of half blood
- Note OBUSEZ V OBUSEZ (2007) 10 NWLR (PT 1043) 430
- Customary marriage: under customary law in some parts of Nigeria, the wife is also considered a chattel to be distributed and so she cannot apply as personal representative
Right to representation in testacy
Note o 58 r 23 (Lagos)
- The executor
- Residuary legatee
- Any residuary legatee or devisee for life
- The ultimate residuary legatee or devisee
A grant can only be made to maximum of 4 people in the order of priority list in which their names appear in the appointment clause of the will.
Probate can be granted to one person where the person is the sole beneficiary and not a minor, or a trust corporation.
Where there is a life interest or minority interest in the will, there cannot be only one executor, grant of probate would not be given to one person.
Renunciation
What happens where an executor is unwilling to act?
What is the effect of renunciation? Every right of executorship to that estate would cease and it would be taken that no executor was appointed or it may go to the next ones listed. Where all executors appointed renounce probate, it would be treated as if no executor was appointed
When?
Who cannot renounce? An executor who has meddled with the estate cannot renounce probate,he has to finish what he started.
Renunciation must be by a positive act, it cannot be passively done. The renunciation form must be filed.
Note: that renunciation can be withdrawn, but an application has to be made to the court to grant it. Where probate has been renounced and the person then joins in the administration, it doesn’t change what has been done by the other executors, their acts are valid, the person cannot query what was done before his renunciation was withdrawn.
Authority of personal representatives
Executors – from will
Administrators – from grant of administration
Note when to act jointly and when it may be several
RELATION BACK
- What happens between death and issuance of grant?
- Note proper party in an action: it should be instituted by next of kin
Note:
BOWLER V JOHN MOWLEM & CO LTD (1954)
INGALL V MORAN (1994) KB 166
STEBBINGS V HOLTS & CO LTD (1953) 1 All ER 925
Example: 1) Qudus Adeoye (Administrator of Cardoso estate) and 2) administrator of estate of Cardoso. The first one will survive because what’s in bracket is a mere description. You cannot sue as that because you don’t have authority
Duties of personal representatives
- R or Trustees? – PR act in the interests of the estate, while trustees act in the interest of the beneficiaries
- To collect in the assets
- Determine assets and liabilities
- To pay taxes
- To pay funeral expenses and debts
- To discharge legacies
- To act for the residuary estate – they need to protect the residuary estate
- Prepare accounts
Administration does not continue forever, it is to wind up the estate and distribute the assets, but before they do this they need to determine the assets and liabilities and pay taxes
Powers of personal representatives
Some are statutory and some are from common law
- To postpone distribution s47 AEL
- Of management S43(1)(a) AEL
- To appropriate assets s44(1)
- To run a business
- To insure
Liabilities
Liable to beneficiaries and creditors for
- Misappropriation
- Maladministration
- Negligence
Note NBA v KOKU
- Liable for waste and conversion (devastavit)
- Liability for co-representation: When it comes to realty they must all consent to the transfer but when it comes to personal property one person can act on behalf of the others and that act would bind the others.
- Can be cited to take up probate
- Liability for not filing accounts
- Liability as executor de son tort
Relief from liability
- Where the will contains a relieving provisions
- Where beneficiaries grant release
- Where the court grants a relief: the court would do this where the PR acted honestly and reasonably in the circumstances and ought to be reasonably excused
- Where the action is statute barred: its 6 years for creditors, 12 years for beneficiaries
REMUNERATION
Note the general rule: The general rule is that they are acting pro bono and would not be paid.However incentives can be given to professionals
Note the exceptions to the general rule
- Where there is a charging clause
- Where application is made to the court (order 48 r 38 Abuja 10,000 naira)
- Where solicitor acts as trustees: where the solicitor acted as trustees they would be entitled to remuneration for work done – the rule in Cradock v piper
- Note NBA V KOKU (SUPRA)
ACCOUNTS TO BE FILED
See order 57 r 16(1) Lagos ; O 48 R 40(9)
Accounts include
- Inventory of all assets
- An account of the administration
- Account of all monies received on behalf of the estate
- Purchase made
- Out of pocket expenses
- Other necessary account of administration
- Voucher
- Affidavit in verification
Accounts must be filed 1) every 12 months until completion of administration. 2) At the conclusion of administration, final accounts should be filed.3) where there is a complaint of maladministration, the executors will be required to file accounts, 4) where the PR is removed or discharged before administration is completed. 5) where the PR is surrendering the administrator general and public trustee, before the administrator general takes over an account needs to be filed.
Account must be filed in all the places where the deceased has properties.
Accounts can be inspected
ASSENT
At common law assent could be made expressly without being in writing. But now it has to be in writing.
S 40(4) AEL –states the features
- It must be in writing
- It should be signed by all the personal representatives
- It should name the beneficiary- the person to whom it is issued.
- It should vest in the named person the legal estate of the property.
Where the assent is not in writing or does not include the name of the beneficiary it cannot pass legal estate.
s40(10) says that assent is not a registrable instrument , but
When is an assent required? In realty, it is not needed for personal property. Assent is only required in real property. Assent is not compulsory if the property is in the Conveyancing act jurisdiction and if the property is personal property.
Draft of an assent
We (name and address, and named and address), the personal representatives of … (name of the deceased) late of (address), who died on ….day of …..in …(state of residence on day of death).. and whose will was proved by us on the ….day of …. 20… at the probate registry of the family division of the high court of ….State do this … day of … 20
As such personal representatives:
- Assent to the vesting in Bimpe Gbenro of 10 Papa Ajao street, Lagos ALL THAT property described in the schedule to this agreement for all the states and interest of Fred Olawale-Cole at the time of his death
- Declare that we have not previously given or made any assent or conveyance in respect of any legal estate in the premises or any part of it.
- Acknowledge the right of Bimpe Gbenro to the production of the probate of the will of Fred Olawale-cole (the possession of which is retained by us) and to delivery of copies of it to her
IN WITNESS of which Toyin Tomato and Tsavmaja have set their own hands in the manner below, the day and year first above written
SIGNED by the above named Toyin Tomato
………………..
In the presence of
NAME
ADDRESS
OCCUPATION
SIGNATURE
SIGNED by the above named Tsav Maja
………………..
In the presence of
NAME
ADDRESS
OCCUPATION
SIGNATURE
Steps to winding up of the estate
- Apply for grant of probate or letters for administration
- Gather in the estate
- Settle just debts
- Distribute the assets in accordance with the will or applicable law
- File accounts of administration
- Then there would be a discharge of their powers as personal representatives
Resealing takes place where a grant of probate was obtained in a particular state and the testator/testatrix still has properties in other states, the person would pay for additional stamp duties for resealing that document.