Agatha, a widow, dies, leaving her estate – whether under a will or an intestacy – equally to her three children: Beryl, Christopher, and David. The main asset of her estate is the former family home, occupied before her death by Agatha, together with Beryl, who had been living there rent-free for years looking after their mother. Beryl rather likes living there and does not wish to move out so that it can be sold. Christopher and David want their shares of Agatha’s estate. How is this likely to play out?
Much will depend upon the specific facts: did Agatha leave a will? If so, who are the executors (those who are responsible for dealing with the estate)? Agatha might have appointed her solicitor as the executor, alone or together with one or more of her children. If Beryl is an executor, then she will certainly be in no hurry to obtain a grant of probate and sell the house. Alternatively, Agatha might have died without a will and thus, while the entitlements of her children are not in doubt – with each child receiving one third – the administration will be in limbo until someone obtains a grant of representation. Without this grant, the house cannot be sold, and nobody can take steps to remove Beryl, who benefits from the protection of the Protection from Eviction Act pending a court order that she leave.
Beryl, for her part, can string things out whether she is an executor or not: if she is, she can delay applying for a grant of probate and then administering the estate; if not, she can instigate a time-wasting dispute over who should be appointed to administer the estate. Further, in any event, there may be a dispute – genuine or contrived – over the will’s validity, a threatened or actual claim under the Inheritance (Provision for Family and Dependants) Act 1975, a claim that she has a beneficial interest in the house by agreement with Agatha, or simply the deliberate sabotage of the sale and marketing process. Such disputed estate administrations can, and often do, drag on for years, with any liquidity in the estate rapidly running out. This leaves the personal representatives unable to pay the expenses, inheritance tax and their own – or their solicitors’ – fees.
In the immediate aftermath of Agatha’s death, Beryl may simply say that because she was living with Agatha with her permission and the property is her home, she has a right to remain in occupation after Agatha’s death. Legally, before Agatha’s death, Beryl was a ‘gratuitous licensee,’ essentially a non-paying guest, and the case of Terunnanse v Terunnanse says that such a licence is “clearly a revocable one. A revocable licence is automatically determined by the death of the licensor…”, here Agatha, following which “…the licensee has, in spite of the revocation, whatever in the circumstances is a reasonable time to enable him to remove himself and his possessions from the scene of the licence.” (Minister of Health v Bellotti). There is an academic discussion as to whether Beryl might have an ongoing ‘implied licence’ and at what point her status converts to that of a trespasser. The personal representatives will be well advised to avoid litigating either point at the estate’s expense if possible. This is important because a trespasser can be liable for mesne profits – essentially retrospective market rent for the period of occupation post-death – whereas a licensee would not be.
So, assuming Beryl is not named as the executor in any will, what should Christopher and David do in this situation?
- Obviously, seek early professional legal advice.
- If they are the named executors, they should apply for probate as soon as they can. If not, they should assist the nominated executors to do so. If there is no will, they should lodge a caveat to prevent Beryl obtaining a grant of letters of administration (this equates to a probate if there is no will) and obtain it themselves. If a dispute ensues as to who should receive the grant, the best option is to seek an independent professional administrator – subject to finding someone willing to take on a disputed administration – and the court would inevitably order this.
- Following the grant, the personal representatives, whoever they may be, should serve a notice to quit, giving Beryl a reasonable time to vacate, and allowing mesne profits to be claimed from that point.
- Pending this, they should not promise Beryl that they will allow her to remain in the property for any period and otherwise acquiesce in her occupation of it.
- Ultimately, the personal representative’s need for possession to complete the administration will trump Beryl’s occupation of the property.
If Beryl is an executor and she is simply frustrating the administration in her own interests, then it is possible to make an application to the High Court for her removal as an executor.
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