In this week’s article I discuss two issues which arise from a letter concerning the respective rights of an intended beneficiary and a person who was appointed executrix in the will of the deceased.
The two questions may be framed as follows:
1. Is a beneficiary entitled to assume possession of property bequeathed to him by a testator immediately on the death of the testator?
2. What powers, if any, does an executor/executrix have prior to obtaining a grant of probate?
Sections 3(1) and 3(2) of the Succession Act, Chapter 249 of the Laws of Barbados provide as follows:
“(1) The real and personal estate of a deceased person shall on his death, notwithstanding any testamentary disposition devolve and become vested in his personal representatives.
(2) The personal representatives for the time being of a deceased person shall be the representatives of the deceased in regard to his real and personal estate, and shall hold the estate as trustees for the persons by law entitled thereto.”
Under the act, “personal representative” means the executor or administrator for the time being of a deceased person.
Section 6 of the act deals with the vesting of the estate between death and a grant of administration. It reads: “Where a person dies intestate or dies testate but leaving no executor surviving him, his real and personal estate, until administration is granted in respect thereof, shall vest in the Public Trustee.”
Where a person dies having made a will, his estate (both real and personal) vests in the executor named in his will.
Since the property of the testator vests in the executor on death, a beneficiary has no right to the property except through the executor. A beneficiary, therefore, should not seize or assume possession or ownership of property devised or bequeathed to him until it has been transferred to him by the executor by assent, conveyance or otherwise.
In respect of the powers of the executor prior to a grant of probate, it should be noted that a grant of probate only confirms the authority of an executor which is derived from the will. An executor is therefore entitled to deal with the property of the deceased without having taken out a grant.
He is therefore, for example, able if he wishes to sell moveable property without a grant. However, a grant of probate will usually be taken out because it is by producing the grant of probate that an executor is able to prove his authority.
The leading text on probate practice describes the position of the executor thus:
“An executor derives his title and authority from the will of his testator and not from any grant of probate. The property of the deceased, including any right of action, vests in him on his testator’s death, and he can institute an action as executor before he proves the will. He cannot obtain a judgment before probate, not because his title depends on probate, but because production of the probate is the only way he is allowed to prove his title.” (Tristram and Coote’s Probate Practice 13th edition p. 141 para. 4.01).
A personal representative has the responsibility to collect and get in the deceased’s real and personal estate. Having collected the assets, the personal representative must administer the estate by paying debts and legacies and by disposing of the remainder in accordance with the law.
In principle, an executor can exercise all his powers prior to obtaining a grant. However, as outlined above, it is the practice that he will await the grant because it is through this that he can prove his title to others.
