Personal representatives - Renunciation and reservation of p...

Learning Outcomes

This article outlines renunciation and reservation of power for personal representatives in probate practice, including:

• The distinction between renunciation and reservation of power, which personal representatives can use each mechanism, and how these choices interact with the cap of four proving personal representatives on any grant.
• The formal requirements for a valid renunciation, including wording, signatures, witnessing, filing at the registry, and express statements of non‑intermeddling, together with how acceptance of office through a grant or intermeddling prevents renunciation.
• The concept of intermeddling, borderline factual scenarios commonly used in SQE1 questions, and the potential consequences of becoming an executor de son tort with personal liability for misapplied estate assets.
• The legal and practical effects of renunciation compared with power reserved, including loss or retention of rights to act, impact on existing grants, availability of double probate, and the separate treatment of any trusteeship under the will.
• Procedural steps for recording power reserved on an application for probate, obtaining a supplemental grant where a non‑proving executor later decides to join, and managing reluctant or obstructive co‑executors using the citation procedure.
• Application of the Non‑Contentious Probate Rules and related principles to exam‑style problem questions involving multiple executors, administrators, minors, and limits on the number and identity of proving personal representatives.

SQE1 Syllabus

For SQE1, you are required to understand renunciation and reservation of power for personal representatives (executors and administrators), with a focus on the following syllabus points:

• The distinction between renunciation and reservation of power for executors and administrators
• The statutory and procedural requirements for valid renunciation and reservation of power
• The legal effects and practical implications of each option
• The ability to identify and apply these rules in SQE1-style scenarios

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. What is the effect of an executor renouncing their office after the testator’s death?
2. Can an executor who has reserved power later join in the administration of the estate? If so, how?
3. What formalities must be satisfied for a renunciation to be valid?
4. Is it possible for an executor to renounce after they have started acting in the estate?

Introduction

When a person dies, their estate is administered by personal representatives—either executors (appointed by will) or administrators (appointed by the court). Sometimes, a person named as executor or entitled to act as administrator may not wish to take up the role, or may wish to defer their involvement. The law provides two main options: renunciation and reservation of power. Understanding the differences, requirements, and effects of each is essential for SQE1.

Renunciation permanently removes the individual from office; reservation of power allows a named executor to remain in the wings while others take the grant, with the option to join later. Administrators can renounce, but reservation of power is a creature of probate and not available in grants of administration.

Renunciation of Power

Renunciation is the formal act by which a personal representative declines to act in the administration of an estate. This is a permanent decision and has significant legal consequences.

Key Term: renunciation
The formal, written refusal by a personal representative to take up the office of executor or administrator, resulting in permanent withdrawal from the role.

Requirements for Renunciation

A valid renunciation must:

• Be in writing
• Be signed by the person renouncing
• Clearly state the intention to renounce
• Contain a statement that the person has not intermeddled
• Be signed in the presence of a disinterested witness
• Be filed at the probate registry (for executors, using the prescribed form)

Once filed and accepted, the renunciation is generally irrevocable. The court may allow withdrawal of a renunciation only in exceptional circumstances and where doing so benefits the estate or persons interested. The renunciation is normally lodged by the proving personal representatives with the grant papers so that the grant can issue without the renouncing person.

Acceptance of office prevents renunciation. An executor accepts office by taking a grant or by intermeddling in the estate—doing something which shows an intention to act as executor.

Key Term: intermeddling
Any act by a person named as executor or entitled to act as administrator which amounts to dealing with the estate, potentially making them liable as an executor de son tort.

Acts that may amount to intermeddling include, for example, collecting estate debts, paying creditors from estate funds, selling estate assets, or otherwise dealing with estate property as if acting under the will. By contrast, acts of mere humanity or necessity—such as arranging the funeral, securing the property, or moving chattels to a place of safety—are not ordinarily treated as intermeddling. Even apparently minor steps like contacting a bank to notify the death may be treated as intermeddling depending on context and purpose, so caution is required before taking any action.

Key Term: executor de son tort
A person who, without authority, deals with the estate as if they were the executor, and who thereby incurs liability to creditors and beneficiaries to the extent of estate assets they have handled.

Effects of Renunciation

• The person renouncing permanently loses all rights and powers as a personal representative; they cannot later reclaim the office without a court order.
• The administration proceeds as if that person had never been appointed or entitled.
• Renunciation does not excuse any liabilities already incurred by intermeddling; a person who has intermeddled may be treated as an executor de son tort.
• Executors and administrators are limited to four persons per grant. A renunciation can assist where more than four are named or entitled by reducing the number who must be accounted for on the grant.

Importantly, renunciation as executor does not, by itself, remove a person from any trusteeship conferred by the will. A will trustee who does not wish to act must separately disclaim trusteeship (if they have not accepted it) or retire in accordance with trust law formalities.

Who Can Renounce?

• Executors named in a will may renounce, provided they have not accepted office by intermeddling or by taking a grant.
• Administrators entitled under intestacy may also renounce. An administrator does not lose the right to renounce merely by acts that would amount to intermeddling for an executor: their acceptance of office occurs upon the grant, not before. Renunciation by a would‑be administrator is commonly recorded on the appropriate form and filed with the application.

Renunciation is “all or nothing”. An executor cannot renounce to a limited extent, or for part only of the estate or time period. Nor can they renounce while attempting to reserve powers for later; the two options are mutually exclusive.

Worked Example 1.1

Question: Olivia is named as an executor in her uncle’s will. She signs a renunciation form and files it at the probate registry. Six months later, she changes her mind and wishes to act as executor. Can she do so?

Answer:
No. Once a renunciation has been filed and accepted, Olivia cannot act as executor unless the court grants her permission to withdraw the renunciation, which is rare and only allowed in exceptional cases where it benefits the estate or the parties interested.

Worked Example 1.2

Question: Three executors are named in a will: Ben, Priya, and Sam. Ben and Priya apply for probate; Sam does not wish to act immediately but wants to keep the option open. What should Sam do?

Answer:
Sam should have power reserved to him when Ben and Priya apply for probate. He will not be involved in the administration unless he later applies for a grant (double probate) and joins as executor.

Worked Example 1.3

Question: Lia is named as an executor. Before deciding whether to act, she (a) arranges and pays for the funeral from her own money; (b) writes to one of the deceased’s customers demanding payment of an outstanding invoice into the estate account; (c) moves valuable paintings from the deceased’s unlocked shed to a secure storage unit. Has Lia intermeddled such that she can no longer renounce?

Answer:
(a) No—arranging the funeral is not intermeddling. (b) Yes—actively collecting estate debts is intermeddling and indicates acceptance of office. (c) No—securing property to prevent loss is generally not intermeddling. Given (b), Lia has accepted office and cannot renounce.

Reservation of Power

Reservation of power allows a personal representative to defer active involvement in the administration of the estate while retaining the right to join in later.

Key Term: reservation of power
The procedural mechanism by which an executor (or administrator) does not join in the initial grant but retains the right to apply for a grant and participate in the administration at a later stage.

How Reservation of Power Works

• It applies to executors. It is not available for grants of administration (with or without will annexed).
• When one or more executors apply for probate, any other named executor may choose not to join in the application. The application indicates that power is reserved to the non‑proving executor.
• The grant will be sealed in the names of the proving executors and will recite that power is reserved to the others.
• The non‑proving executor may later apply to be added to the grant; the probate registry will issue a supplemental grant naming all proving executors.

Key Term: double probate
A supplemental grant issued to a previously non‑proving executor whose power was reserved, allowing them to join the existing executors in the administration.

Reservation of power is commonly used where an executor is abroad, unwell, uncertain about taking on the burden, or where there are already four executors proving (the maximum number permitted on a single grant). A sole executor cannot reserve power and must either act (prove) or renounce.

Effects of Reservation of Power

• The executor with power reserved is not responsible for the administration and owes no active duties until they join by taking a supplemental grant.
• They retain the right to step in at any time before the administration is complete, by applying for double probate.
• Once added, they have the same authority (joint and several with co‑executors) as if their name had been on the original grant, though they are not retroactively liable for decisions taken before they joined.

Power Reserved vs Administrators

Reservation of power is a probate concept. Where a grant of administration is required (for example, no executor appointed or able to act), persons equally entitled to a grant do not have “power reserved”. Instead, any one or more of those of equal priority may apply without notice to the others. Those who do not apply may still later seek a further grant if appropriate, but there is no “reservation” noted on the first grant.

Joining Later: Procedure and Timing

A non‑proving executor may seek double probate at any point before the administration is complete by filing the appropriate application and evidence of their original appointment. The registry will review the existing grant, confirm that power was reserved, and seal the supplemental grant. The addition of a further proving executor does not invalidate acts already done by the original executors.

Where the original proving executor dies without completing the administration, the chain of representation normally means the deceased executor’s own executor becomes executor of the first estate. However, a non‑proving co‑executor with power reserved can still come forward and prove, and where they do, the chain of representation will yield to the presence of a living executor able to act under the will.

Worked Example 1.4

Question: A will appoints Dana and Eric as executors. Dana applies for probate; Eric neither proves nor renounces and is unresponsive. Dana wants clarity. What options are available?

Answer:
Dana can proceed to probate alone with power reserved to Eric. If Eric’s inaction causes difficulty (for example, where his cooperation is required or where there is risk of delay), Dana can issue a citation requiring Eric to accept or renounce. If Eric fails to comply with the citation, the court can permit the grant to issue as if he had renounced.

Key Term: citation
A probate procedure compelling a named executor to accept or renounce a grant within a stated period; failure to comply may allow the court to pass over the executor.

Worked Example 1.5

Question: A dies intestate. Two adult children, Faye and Garen, are equally entitled to a grant. Faye wishes to proceed; Garen does not want to be involved but asks for “power reserved.” Can this be done?

Answer:
No. Reservation of power is not available for administrators. Faye may apply for a grant of letters of administration without notice to Garen. Garen’s non‑participation does not need to be recorded as “power reserved”.

Comparison: Renunciation vs Reservation of Power

Practical pointers and procedure

• Record it correctly on the application. The probate application form requires the names of all executors and, for each non‑applicant, the reason (renunciation, power reserved, or pre‑deceased/unable).
• Keep to the cap of four. No more than four personal representatives can take a grant to the same part of the estate. Where more are named, reservation of power (or renunciation) can be used to reduce the number proving.
• Prefer reservation of power where uncertain. If there is any doubt about acting, reservation preserves the option to join later. Renunciation should be used where the decision not to act is final.

Exam Warning

Renunciation is generally irrevocable. If an executor has already started acting (intermeddling), they cannot renounce and may be treated as an executor de son tort, with personal liability for their actions. Conversely, reservation of power is unavailable to administrators; do not confuse the two.

Revision Tip

Reservation of power is only available where there are multiple executors. A sole executor cannot reserve power—they must either act or renounce. Renouncing as executor does not remove a trusteeship under the will; that must be separately disclaimed or retired.

Additional points often tested

• Filing and witnessing: Ensure the renunciation is signed, witnessed by a disinterested person, and filed at the registry; bare letters are insufficient. A statement of non‑intermeddling is standard.
• Retraction of renunciation: Possible only by court order and only if beneficial to the estate or the parties interested. This is exceptional.
• Administrators’ renunciation: A prospective administrator’s renunciation is effective even if they have taken preliminary steps; their acceptance of office only occurs on the grant.
• Managing uncooperative co‑executors: Use the citation procedure to compel an executor to accept or renounce where their stance is obstructive or unclear.
• Double probate mechanics: A non‑proving executor with power reserved joins the original executors by a supplemental grant. Their authority is joint and several from that point forward.

Summary

• Renunciation is a permanent, formal withdrawal from the office of personal representative. It requires a written instrument, signed and witnessed, containing a statement of non‑intermeddling, and must be filed at the probate registry. It is irrevocable save in rare, court‑sanctioned cases.
• Reservation of power is available to named executors who choose not to prove initially. The grant is issued to the proving executors, reciting that power is reserved to the others. A non‑proving executor may later join by obtaining double probate.
• Administrators can renounce, but they cannot “reserve power.” Where persons of equal priority do not wish to apply, others may do so without notice.
• Intermeddling indicates acceptance of office and prevents renunciation; it may also give rise to liability as an executor de son tort.
• Use the citation procedure to compel a reluctant co‑executor to accept or renounce if necessary.

Key Point Checklist

This article has covered the following key knowledge points:

• Renunciation is a permanent, written refusal to act as executor or administrator, filed at the probate registry, and generally cannot be withdrawn.
• A valid renunciation includes a statement of non‑intermeddling and is witnessed by a disinterested person.
• Acceptance of office (by grant or intermeddling) prevents renunciation; intermeddling may create liability as an executor de son tort.
• Reservation of power is available only to executors; it is recorded on the grant and allows later joinder by double probate.
• Administrators cannot reserve power; among persons equally entitled on intestacy, one may apply without notice to the others.
• No more than four personal representatives can prove to the same part of the estate; others may renounce or have power reserved.
• A reluctant co‑executor can be cited to accept or renounce.
• Renunciation of executorship does not remove trusteeship under a will; trusteeship must be separately disclaimed or retired.

Key Terms and Concepts

• renunciation
• intermeddling
• reservation of power
• executor de son tort
• double probate
• citation