Jonathan Addo
Harneys, Tortola
jonathan.addo@harneys.com

Faisal Saifee
Harneys, Tortola
faisal.saifee@harneys.com

By 2030, over $18tn in wealth will be transferred globally from the ‘baby boomer’ and older generations to their heirs.^[1] This ‘great wealth transfer’ does not just involve an increase in the amount of wealth being inherited but it is also translating into more disputes before the courts. For example, the Probate List in the High Court of England and Wales has seen a substantial, annual rise in the number of cases issued each year: from 227 in 2016 to 590 in 2024 – an increase of over 150 per cent.^[2]

In common law jurisdictions,^[3] a personal representative administers the deceased person’s estate by performing a function comparable to a liquidator of a company. Some estates will be administered by an executor named in a will. It is well established that the authority of an executor stems from his appointment in a will and takes effect from the death of the testator.

Where, however, there is no (valid) will (ie, an intestacy) or no executor willing to act, the position is different. The personal representative will be named an ‘administrator’ whose title dates from the grant of letters of administration itself, not the date of death. There may often be a delay in the grant, providing an opportunity for wrongdoers to commit depredations and or intermeddle with the estate.

Yet a claim intended to protect the estate but based on a cause of action where legal capacity to sue is lacking, is a nullity. The purpose of this article is to map out the judicial remedies available to help protect an unadministered estate before the full grant of letters of administration.

Claims without a representative having been appointed

Only in very limited circumstances may beneficiaries in an intestacy scenario file claims to protect the estate before the grant of letters of administration. These circumstances might include claims against a person who interferes with the administration of a deceased’s estate when they lack legal authority to do so, known as an executor de son tort, and derivative claims.

Claims against executors de son tort

A creditor, beneficiary (or the rightful personal representative, if there is one) may sue an executor de son tort. It has been held that the slightest circumstance may make a person executor de son tort if they intermeddle with the assets in such a way as to denote an assumption of the authority, or an intention to exercise the functions, of an executor or administrator.^[4] Proof of intention or an assumption of authority is important; a burglar who steals estate property, but has no intention of exercising the functions of a personal representative, will not be liable under this head.

The liability does not attach to acts committed during the deceased’s lifetime, even if it were alleged that the wrongdoer intended to act as the administrator of the estate.^[5]

Derivative claims

It is only where there are ‘special circumstances’ that a beneficiary of the estate should be able to bring a claim against a wrongdoer to protect the estate and their interest in it. The absence of a personal representative to protect the value of the estate will not of itself constitute a sufficiently special circumstance.^[6]

Examples of special circumstances include:

• where there is an existing personal representative;
• fraud on the part of the personal representative;
• collusion between them and the third party; or
• insolvency of the personal representative.^[7]

There may also be circumstances where a properly appointed personal representative was not properly pursuing action open to them and therefore a derivative claim might be brought. In any event, the court will ensure that a beneficiary cannot be in a better position than a personal representative would be in if they carried out their duties in a proper manner.

Representation of the unadministered estate prior to a full grant

On the other hand, if a representative does need to be appointed, there are three principal routes open to obtain an appointment on behalf of the unadministered estate:

• appointment of a receiver/administrator pending the grant;
• a limited grant of letters of administration; and
• an appointment under the applicable civil procedure rules.^[8]

Appointment of a receiver/administrator pending the grant of administration

Before probate or letters of administration have been granted, the court may appoint a receiver or manager (or both) to the protect the deceased’s estate. The modern practice is to make a probate or administration claim^[9] pending a grant.^[10] In Mohan Jogie v Angela Sealy (Trinidad and Tobago) [2022] UKPC 32, Lord Leggatt and Lord Stephens at [160] approved the use of this procedure where urgent protective action is required.

If proceedings are already pending, the application would ordinarily be made in those proceedings for an administrator pending determination of a claim.^[11]

Limited grant of letters of administration

In the first paragraph of the Privy Council’s judgment in Mohan Jogie v Angela Sealy, Lord Burrows (with whom Lady Rose agreed) suggested that if there is a delay in obtaining a grant, consideration should be given to whether a more limited grant could be obtained more quickly.

The most common types of limited grant in these situations include grants limited to an action for the purposes of starting or continuing proceedings, whether for or against the estate (formerly known as a ‘grant ad litem’). Another common type of limited grant is a grant ad colligenda bona, used for the purpose of preserving assets.

As a method of facilitating the grant of interim relief, a grant limited to an action might be appropriate and has been used in multiple jurisdictions.^[12]

A limited grant will not permit one beneficiary to steal a march on the others. In a recent and salutary judgment of the High Court of the British Virgin Islands, Justice Mithani emphasised the importance of ensuring that the correct defendants are named and served with such an application otherwise it will be set aside.^[13]

Appointment under the Court’s Civil Procedure Rules

Recent authority from the Supreme Court of the Bahamas summarises the case law on the use of wide civil procedure powers instead of insisting on the formal grant of letters of administration.^[14]

In many instances a court’s power to appoint a representative of an estate will render formal grants limited to an action unnecessary. Nonetheless, this will depend on the precise ambit of the powers afforded to the court under the rules in question. Some courts’ civil procedure powers do not stretch as far as to make an appointment where the estate is to be the claimant in new proceedings.^[15] In such cases a grant limited to an action will still be required.

Conclusion

As estate litigation rises in step with the global wealth transfer, legal systems seek to ensure that unadministered estates remain protected during periods of vulnerability.

While guarding against the possibility of any and every beneficiary being able to bring their own claim, common law courts increasingly recognise the need for interim remedies – whether through claims made in the absence of any appointment, limited grants or procedural appointments – to preserve unadministered estates.