Posted: Tuesday, 5 September 2023 @ 11:50
It is covered in my book on elderly law but one of the best ways to scrutinise an executor is to make an application for inventory and account.
There are a number of variables which make it an appealing application and a certain set of variables need to fall into place:
1 I tend to like it on more straightforward Estates. As it is an application which goes before a Probate Registrar(rather than a High Court Judge) it is best to use when the issues are not too complex and/or there is not much factual argument.
2 For cost conscious clients it is appealing because it is relatively easy to fix the costs. This is because there is a trend amongst Probate Registrars to deal with applications without a hearing. It is also such an application which is done often without formal steps such as exchange of documents or witness statements.
3 I like to use against Executors who are not doing a lot/not dealing with the Estate. Effectively the Executors are not tactically astute meaning that the Probate Registrar may be more inclined to support the application.
4 The Executor needs to have applied for probate and you need to have had one year to have passed since the Deceased died. There are work arounds to this scenario (such as a Citation) but these are practical considerations to think about.
On the other hand there are times when I will advise clients to avoid inventory and account and these are as follows:
1 High Level Complexity/Significant Factual Dispute - Generally this kind of application is more probably more suited to a different arena and often I would be looking at the High Court and some kind of Part 64 application in this scenario.
2 Speed is Omnipotent. One of the issues facing inventory and account applications particularly post covid is that the speed of how quickly your application is variable. You make have a long wait.
3 Probate not been obtained. The application has to be done once probate has been obtained by the Executor. As a consequence particularly in the first year after the Deceased has died it has limited value. I tend to stay clear of them in the first year after the Deceased passed.
4 Enforcement of Awards is More Tricky. I have had instances where Court orders have been made(including with a penal notice) and generally the Courts will not get involved in enforcing them. The Courts at this level are not used to contentious legal proceedings so you need to factor it in.