Philip King v Stephen King
| Jurisdiction | England & Wales |
| Judge | David Rees,Mr David Rees |
| Judgment Date | 15 November 2023 |
| Neutral Citation | [2023] EWHC 2822 (Fam) |
| Court | Family Division |
| Docket Number | Case No: FA-2023-000196 |
[2023] EWHC 2822 (Fam)
Mr David Rees KC
(Sitting as a Deputy Judge of the High Court)
Case No: FA-2023-000196
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION (NON-CONTENTIOUS PROBATE)
ON APPEAL FROM THE NEWCASTLE DISTRICT PROBATE REGISTRY
IN THE MATTER OF THE NON-CONTENTIOUS PROBATE RULES 1987
AND IN THE MATTER OF THE ESTATE OF ERIC SIDNEY KING DECEASED
Royal Courts of Justice
Strand, London, WC2A 2LL
The Appellant appeared in person
Mr Daniel Thorpe (instructed by Meridian Private Client LLP) for the Respondent
Hearing date: 23 October 2023
I direct no official shorthand note shall be taken of this Judgment and that copies of this Judgment as handed down may be treated as authentic
David Rees KC, Deputy High Court Judge
Mr David Rees KC:
INTRODUCTION
This is an appeal relating to the estate of Eric Sidney King (“ the Deceased”) who died on 15 April 2021. The Deceased died intestate and domiciled in England and Wales. By an order dated 11 July 2023 a District Probate Registrar in the Newcastle District Probate Registry ordered that letters of administration in the Deceased's estate should issue to one of his sons Stephen King (“ Stephen”). Pursuant to that order a grant of letters of administration in the Deceased's estate was issued to Stephen on 7 August 2023.
The District Probate Registrar's order is now appealed by another of Mr King's sons Philip King (“ Philip”) who had sought his own appointment as his father's administrator.
THE LAW
(1) Entitlement to a Grant
Non-contentious probate business is governed by the Non-Contentious Probate Rules 1987 (“ NCPR 1987”). Rule 22(1) sets out the order of priority for a grant in case of intestacy as follows:
“(1) Where the deceased died on or after 1st January 1926, wholly intestate, the person or persons having a beneficial interest in the estate shall be entitled to a grant of administration in the following classes in order of priority, namely–
(a) the surviving spouse or civil partner;
(b) the children of the deceased and the issue of any deceased child who died before the deceased…”
In the present case the Deceased was divorced. The entitlement to a grant therefore belongs equally to his children and any issue of a deceased child.
Where more than one person of the same degree is entitled to a grant, the court has a discretion as to which of those individuals it should appoint as administrator. Unless a minority or life interest arises, it may appoint a single member of the class or appoint a number of them (up to the statutory maximum of four) — see Senior Courts Act 1981 s.114(1) (“ SCA 1981”). The procedure governing such disputes can be found at r.27(4)-(8) NCPR 1987 which provides:
“(4) A grant of administration may be made to any person entitled thereto without notice to other persons entitled in the same degree.
(5) Unless a district judge or registrar otherwise directs, administration shall be granted to a person of full age entitled thereto in preference to a guardian of a minor, and to a living person entitled thereto in preference to the personal representative of a deceased person.
(6) A dispute between persons entitled to a grant in the same degree shall be brought by summons before a district judge or registrar.
(7) The issue of a summons under this rule in the Principal Registry or a district probate registry shall be notified forthwith to the registry in which the index of pending grant applications is maintained.
(8) If the issue of a summons under this rule is known to the district judge or registrar, he shall not allow any grant to be sealed until such summons is finally disposed of.”
A list of factors that have been taken into account in such disputes is to be found in Tristram & Coote's Probate Practice (32 nd ed) at paras et seq. Some of these are now only of historic interest (such as the now extinct practice of preferring a male applicant to a female), and others (such as the circumstances under which the court will select among the deceased's creditors) are not relevant to the dispute before me.
The factors identified by Tristram & Coote which appear to me to potentially be of some relevance in the present case are:
(1) Objections based upon characteristics of an applicant which render them unsuitable to act as an administrator. These may include dishonesty, bankruptcy, insolvency or ill health which prevents them from being able to carry out the requisite tasks.
(2) Objections based upon a conflict of interest between the applicant and the estate. Conflicts may arise in a number of different ways. Tristram & Coote at [14.21] makes reference to the ancient case of Budd v Silver (1813) 2 Phillimore 115 where the court refused a grant in circumstances where the deceased's estate had a claim against the son of the applicant. There the court was concerned that the applicant might not assert the estate's claim against his son sufficiently strongly.
(3) There is a general practice that, in cases of dispute, the view of those entitled to the larger share of the estate is preferred. However, the court is not bound to follow this practice. In Cardale v Harvey (1752) 1 Lee 177 at 179–180 Sir George Lee held:
“though it is a good general rule to grant administration to the largest interest, yet that is only introduced by practice, not by any positive law, and the Court is not obliged to grant it to the largest interest”.
(4) A practice, where there are competing applications and nothing else to enable the court to choose between them, to prefer the first application that has been received.
This final point does not, in my view, carry any great weight particularly where (as here) the case has been fully argued at an attended hearing.
Where circumstances exist that plainly demonstrate that an applicant is unsuitable to carry out the role of administrator, or is under a significant conflict of interest, then the task of the Court may be relatively straightforward. However, where the position is more finely balanced it may be difficult to choose between the competing claims of two applicants. In my judgment, in such circumstances, the court has two effective options before it:
(1) It may exercise its discretion to select one of the two applicants before it. Such discretion is at large and although the factors identified in Tristram & Coote may provide some assistance in some cases; in other cases they may not. Factors such as the views of a majority of the beneficiaries may carry weight on the facts of one case, but may be less important in another. The selection of the administrator is ultimately a matter for the registrar or judge taking into account the totality of the evidence before them;
(2) Alternatively, it may appoint an independent administrator. Under SCA 1981 s. 116 the court has power to pass over the claims of those entitled to a grant under r.22(1) NCPR 1987. The section provides as follows:
“If by reason of any special circumstances it appears to the High Court to be necessary or expedient to appoint as administrator some person other than the person who, but for this section, would in accordance with probate rules have been entitled to the grant, the court may in its discretion appoint as administrator such person as it thinks expedient.”
Thus, for the court to exercise its powers under this section, it must be satisfied that there are (a) “special circumstances” which (b) render it “necessary or expedient” to pass over the person or persons entitled to the grant. The circumstances under which grants have been made under this section are wide-ranging see William Mortimer & Sunnucks – Executors, Administrators & Probate (22 nd ed) paras 17-06 and 17-07). They clearly include circumstances where there is a dispute between rival applicants who are equally entitled to a grant if the appointment of an independent administrator will avoid litigation and delay (see Tristram & Coote para [14.21]).
Ultimately, in making its decision, the overall interests of the beneficiaries of the estate as a whole must be at the forefront of the mind of the registrar or judge. The estate should be administered properly and in accordance with the law, but equally it should be administered efficiently and at a reasonable cost that is proportionate to the size of the estate. Administration by an independent professional administrator will inevitably prove more expensive than administration by a lay administrator and this will need to be taken into account. Not every dispute between rival applicants requires the court to appoint an independent administrator. Equally though, the imposition by the court of an independent professional to administer the estate may remove a source of contention and enable a more objective approach to be brought to bear.
What the court should not do is to appoint the two rival applicants to act jointly. Unless it is clear that they are going to be able to act together, this will prevent the effective administration of the estate ( Bell v Timiswood (1812) 2 Phillimore 22).
(2) The Procedure Governing this Appeal
This appeal is brought under NCPR 1987 r.65. Appeals such as this are not common and, unusually, the procedure that falls to be applied continues to be governed by the provisions of the Rules of the Supreme Court 1965 (“ RSC 1965”). That this should be the case nearly twenty five years after those rules were replaced by the Civil Procedure Rules 1998 (“ CPR 1998”) is at first blush surprising, and a little background is necessary to explain why this is the case and why an appeal of this nature falls to be heard in the Family Division of the High Court.
The historic reason why certain probate matters are assigned to the Family Division of the High Court were explained by MacDonald J in Ali v Taj (Probate: Inventory and...
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