Priority for a grant where the sole executor predeceased (NCPR 1987 r.20)
Beatrix's will appoints her brother, Lionel, as sole executor. It leaves £10,000 to her friend Saoirse and the residue of her estate to her two adult nieces, Amara and Josie, absolutely in equal shares. Lionel died two years before Beatrix. The will contains no other appointment of executors. Beatrix has now died, domiciled in England. Saoirse, Amara and Josie are all willing to act, and so is Lionel's own executor.
Which of the following best describes who has priority to take a grant and what type of grant will issue?
Choose one answer to see the reasoning.
Worked answer
Correct answer B: Amara and/or Josie, as residuary legatees, who will take a grant of letters of administration with the will annexed.
THE RULE TO REMEMBER
Where no executor can prove, residuary legatees have priority under NCPR r.20(c) and take letters of administration with the will annexed.
Priority for a grant where the sole executor predeceased (NCPR 1987 r.20)
Rule 20 of the Non-Contentious Probate Rules 1987 sets the order of priority for a grant where the deceased left a will. The executor comes first, then any residuary legatee holding on trust, then 'any other residuary legatee or devisee'. Only after those come the personal representative of a residuary beneficiary, and then other legatees and creditors. Lionel predeceased Beatrix, so there is no executor able to prove. Amara and Josie are residuary legatees with vested interests, so they rank next under r.20(c). Because no executor is proving, the grant is not probate but letters of administration with the will annexed. Lionel's executor has no claim through the chain of representation, which operates only where an executor has proved the will, and Lionel died before Beatrix. Saoirse, as a pecuniary legatee, ranks below the residuary legatees under r.20(e).
Why A is wrong: The chain of representation applies only where a proving executor dies after taking a grant; Lionel predeceased the testator and never proved.
Why C is wrong: A pecuniary legatee falls within r.20(e), below residuary legatees, and only executors take probate.
Why D is wrong: Residuary beneficiaries are not executors unless appointed as such; they take letters of administration with the will annexed, not probate.
Why E is wrong: The will remains valid and disposes of the estate; the failure of the executor appointment does not make Beatrix intestate.
A little more practice done.
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