Grants of representation - Required documentation and evidence

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Overview

Grants of representation are key legal tools in estate administration, necessary for managing and distributing a deceased person's assets. For aspiring solicitors preparing for the SQE1 FLK2 exam, a good grasp of these grants, their types, and the associated documentation is vital. This guide delves into the legal framework surrounding grants of representation, focusing on the evidentiary requirements, procedural details, and potential challenges.

Types of Grants of Representation

There are three main types of grants of representation, each serving a specific role in estate administration:

1. Grant of Probate

This grant is issued when the deceased has left a valid will appointing executors. Important aspects include:

  • Authorizes executors to manage the estate according to the testator's wishes
  • Executors derive authority from the will, with the grant providing formal recognition
  • Confirms the will's validity and the executors' appointment

2. Letters of Administration with Will Annexed

Issued when a valid will exists, but no executor is available. Situations include:

  • All named executors have predeceased the testator
  • Executors have renounced their right to probate
  • The will fails to name an executor

The grant is typically issued to residuary beneficiaries following the Non-Contentious Probate Rules 1987.

3. Letters of Administration

Required when there is no valid will, necessitating distribution according to intestacy rules. Key points:

  • Usually issued to the deceased's closest surviving relatives
  • Follows the order of priority in the Administration of Estates Act 1925
  • Administrators must follow intestacy rules precisely when distributing the estate

Required Documentation and Evidence

Obtaining a grant of representation involves submitting specific documents and evidence:

1. The Will and Codicils

  • Submit the original will and any codicils
  • Must meet formalities outlined in the Wills Act 1837
  • Copies are not acceptable unless the original is lost or destroyed

2. Death Certificate

  • Official death certificate from the Registrar of Births, Deaths and Marriages
  • If the body is not recovered, a presumption of death order may be required

3. Inheritance Tax Forms

  • IHT400 form for estates exceeding the inheritance tax threshold
  • IHT205 form for smaller estates
  • IHT421 form confirming tax obligations are met or no tax is due

4. Executor/Administrator Identification

  • Full name, address, and proof of identity of executor(s) or administrator(s)
  • Details of all executors required, even if not all are applying for the grant

5. Oath for Executors or Administrators

  • Sworn statement (Statement of Truth) detailing the deceased's details, the applicant's entitlement, and the commitment to administer the estate lawfully

6. Additional Documentation

  • Evidence of the applicant's relationship to the deceased for Letters of Administration
  • Certified copy of the deceased's family tree for partial intestacy cases

Ensuring the Will's Validity

The validity of a will is essential in probate proceedings. Key factors include:

1. Testamentary Capacity

Based on the Banks v Goodfellow (1870) test, the testator must:

  • Understand the nature and effect of making a will
  • Know the extent of their property being disposed of
  • Consider potential beneficiaries' claims
  • Be free from any mental disorder affecting decisions

2. Knowledge and Approval

The testator must have known and approved the will's contents. Additional scrutiny may apply in suspicious circumstances, as in Re Goods of Deichman [1969].

3. Undue Influence and Fraud

Ensure the will was not procured by undue influence or fraud. The burden of proof lies with those alleging undue influence (Edwards v Edwards [2007]).

4. Proper Execution

The will must be executed according to Section 9 of the Wills Act 1837:

  • In writing
  • Signed by the testator or acknowledged in the presence of two witnesses
  • Two witnesses signing or acknowledging their signatures in the testator's presence

Intestacy Rules and Administration

Without a valid will, the estate is administered according to the intestacy rules in the Administration of Estates Act 1925 (as amended):

1. Order of Priority for Administrators

  1. Surviving spouse or civil partner
  2. Children of the deceased
  3. Parents of the deceased
  4. Siblings of the deceased
  5. Grandparents
  6. Aunts and uncles

2. Distribution Rules

  • Surviving spouse and no children: spouse inherits entire estate
  • Surviving spouse and children: spouse receives the first £270,000 (as of 2020), personal chattels, and half of the remaining estate; children share the other half
  • No spouse or children: estate passes to parents, then siblings, then more distant relatives

3. Bona Vacantia

If no eligible relatives are found, the estate passes to the Crown, Duchy of Lancaster, or Duchy of Cornwall.

Practical Examples and Case Law

Example 1: Contentious Probate

In Re Goods of Deichman [1969], the court examined a will leaving the entire estate to the testator's solicitor. This case underscores the importance of ensuring a testator's knowledge and approval of unusual will provisions.

Example 2: Partial Intestacy

A scenario where a will disposes of specific assets but lacks a residuary clause illustrates the challenges of estate administration when combining testate and intestate distribution.

Key Case Law

  1. Banks v Goodfellow (1870): Established the test for testamentary capacity.
  2. Larke v Nugus [2000]: Emphasized the importance of solicitors' evidence in will disputes.
  3. Illott v The Blue Cross and others [2017]: Addressed claims under the Inheritance (Provision for Family and Dependants) Act 1975.

Conclusion

Understanding the details of grants of representation, including required documentation, evidence, and relevant case law, is vital for legal practitioners in estate management. This knowledge ensures adherence to legal standards, facilitates efficient estate administration, and equips professionals to handle complex cases confidently. For SQE1 FLK2 exam candidates, thoroughly understanding these concepts is crucial for success, forming a strong basis for addressing probate and estate administration challenges in their future legal careers.