Duty of Executors and Assets

26 February 2021


A couple of weeks ago I talked about the legal basis behind why the land registry don’t look behind assents.

So if the Land Registry don’t care what assent you send in, then, can the per rep not put property into the name of anyone her or she likes? Well I’m afraid not. This is due to the bothersome rules of equity and the laws of trusts. Darn it!

S. 10(3) of the Succession Act makes it clear that a per rep acts as trustee. A core tenet of the law of trusteeship is that it is a breach of trust to fail to make proper distribution to beneficiaries. The important point being that, even though the beneficiaries of the trust (ie the beneficiaries under the will) are different from what was originally set out in the will (due to a deed of family arrangement) the per rep retains obligations to whoever is the new beneficiary. The cases of H v O [1978] IR 194 and Messitt v Henry [2001] 3 IR 313 make it clear that the per rep must act bona fide and cause no undue prejudice to beneficiaries and derive no significant advantage for him or herself.

So that’s the prohibition. In addition to the prohibition, there is the permission. S. 52(1) of the Succession Act also contains a useful provision. It effectively states that the per rep is entitled to place the property into the hands of anyone beneficially entitled to the property.

The section states that the per rep may “at any time after the death of the deceased execute an assent vesting any estate or interest in any such land in the person entitled thereto”

The section also helpfully defines “person entitled” as “any person (whether by devise, bequest, devolution or otherwise) may be beneficially entitled to that estate or interest.”

So beneficial interest or ownership is key. I explain this to clients by saying that legal title is a mere coat hanger from whence hangs the tuxedo of beneficial ownership. That doesn’t really tend to clarify it for them but I like to say it in any event.

Hope that helps and have a great weekend.

Regards, Colm Kelly

PS There was due to be new probate fees in place by 1 March. As far as I can see they haven’t come in yet. No mention on the probate section of the courts website or on the Irish Statute Book. I attach a link here to the Law Society’s note on the order and a draft copy of the order. https://www.lawsociety.ie/News/News/Stories/new-probate-fees-order/

Stay on this list and I will keep you posted.

PPS I have great new content lined up over the next few weeks, to include precedent forms for the new Oaths, interesting notes on lapse and appointment of trustees. So feel free to pass on my details to anyone who you think might be interested.