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How Do You Make A Dilatory Executor Move On The Estate

Posted: Wednesday, 15 November 2023 @ 11:09

The scenario is this. A beneficiary/beneficiaries of a Will are waiting for an Executor to get on and deal with the Estate but the Executor is doing nothing and the delay continues.

What to do?

A very effective method can be a Citation which are a good tactical way of trying to force a delaying executor into action, or to entitle someone else to administer the estate.

Citations are a nice form of legal action as it is quite targeted, can put the executor pressure and force him or her to start dealing with the Court .A citation of any type may be issued by the Principal Registry or by a District Registry and must be settled by a District Judge or Registrar.

As a lawyer I like targeted actions. Bear in mind this form of action means the executor stays in place.

There are two main kinds: 

1. Citation To Accept or Refuse a Grant

  • Applies where an executor has not intermeddled and cannot be persuaded to renounce.
  • Is taking no steps to obtain a grant of probate, he can be cited by the person next entitled to a grant to accept or refuse probate (NCPR r.47(1))
  • If the executor fails to appear or apply for a grant, the citor is entitled to apply for a grant to himself.

2 Citation To Take A Grant

  • Applies where an executor has intermeddled in the estate (so that renunciation is impossible).
  • Has not taken a grant within six months of death he may be cited by any person interested in the estate to show cause why he should not be ordered to take a grant
  • If the executor fails to appear or apply for a grant, the citor may apply for an order requiring the executor to take a grant (if such an order is made and breached, the executor will be liable for committal), or for a grant to himself or someone else 

What is the Procedure?

Before any citation is issued, a caveat must be entered in respect of the estate and no court fee applies.

The application for the issue of a citation may be made in person or by post. Everyone with an interest in the document should be cited.

An affidavit should not be sworn before a citation is settled so that it can be corrected if it does not cover the required facts.

Every Will or purported Will referred to in a citation must be filed. A citation must be served personally unless otherwise directed.

A Certificate of Service should be endorsed. A person who has been cited then enters an appearance at the Registry from which the citation is issued by lodging Form 5.

The form sets out the name, address and interest claimed by the citor as shown on the citation. It should also give the full name, address and details of the interest of the citee himself including the date of the Will under which such interest arises.The citee must serve a sealed copy of the appearance on the citor by delivering it at the citor’s address for service or by sending it there by post or otherwise.

The time for appearance is 8 days after service of the citation but it can be extended