Executor who may wish to act later: power reserved rather than renunciation (NCPR 1987 rr.27 and 37)
Vivienne's will appoints her two children, Oluwaseun and Hana, as executors. Vivienne has died, domiciled in England. Oluwaseun wants to apply for probate now. Hana is working overseas for the next year and does not want to be involved at present, but she says she may want to act as executor when she returns.
Which of the following is the most appropriate course?
Choose one answer to see the reasoning.
Worked answer
Correct answer D: Oluwaseun should apply for probate alone, with power reserved to Hana, giving Hana notice of the application.
THE RULE TO REMEMBER
An executor who may wish to act later should have power reserved, with notice of the application given to them, rather than renounce, since a renunciation can be retracted only with leave.
Executor who may wish to act later: power reserved rather than renunciation (NCPR 1987 rr.27 and 37)
An executor who does not wish to act now, but may wish to later, should not renounce. Instead, the other executor can apply for probate with power reserved to the non-proving executor. Rule 27(1) of the Non-Contentious Probate Rules 1987 provides that where, on an application for probate, power to apply for a like grant is to be reserved to executors who have not renounced, notice of the application must be given to them, and the applicant must state that notice has been given. Hana keeps the right to apply later for a grant of double probate. Renunciation, by contrast, gives up the right to the grant. Under r.37(3) a renunciation can be retracted only with the leave of a district judge or registrar, and only in exceptional circumstances after a grant has been made to someone entitled in a lower degree. Oluwaseun can therefore proceed now while preserving Hana's position.
Why A is wrong: A renunciation can be retracted only with the leave of a district judge or registrar under r.37(3), not at will.
Why B is wrong: Not every named executor need apply; probate can be granted to one with power reserved to the others.
Why C is wrong: An executor who does not prove now does not lose the right if power is reserved; renunciation is the step that gives it up.
Why E is wrong: An executor is willing and able to prove, so probate (not administration with the will annexed) is the correct grant.
A little more practice done.
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