Da Silva v Heselton & Ors

Appointment of a substituted personal representative under Administration of Justice Act 1985, section 50, transfers the deceased’s estate-related powers from the former personal representative. Where the same persons were appointed executors and trustees, their replacement as personal representatives also prevents them becoming trustees of the residuary estate when administration is complete. A former personal representative cannot claim an indemnity for liabilities incurred after substitution by asserting a continuing trusteeship. A consent order must be construed by giving its language its natural and ordinary meaning in its historical and factual context, having regard to its purpose. Questions concerning foreign immovable property require proper consideration of the law of the situs.

The deceased died in 2003, leaving property in England and Dominica. The first and second defendants were appointed executors and trustees. Following a claim to expedite administration, a consent order appointed Peter Brunton as substituted personal representative under section 50 of the Administration of Justice Act 1985, vested English property in him, and removed the first defendant from specified trusteeship.

The first defendant later applied for construction of the will and order, contending that she remained trustee of the residuary estate, that property in Dominica had vested in her, and that she was entitled to an indemnity for liabilities incurred in connection with the English property. The proposed fourth defendant sought consequential relief. The issues were whether substitution had ended the first defendant’s role, whether the Dominica property had vested in her, and whether an indemnity was available.

1. Substitution as personal representative. The order appointed the fourth defendant as personal representative in substitution for the first and second defendants from 17 June 2016. Under section 50 of the Administration of Justice Act 1985, that appointment constituted him administrator of the deceased’s estate. The powers of the former personal representatives concerning the estate therefore transferred to him.
2. The roles of executor and trustee commonly coincide, but they remain legally distinct. The first defendant did not need to be removed separately under section 41 of the Trustee Act 1925. On completion of administration, the residuary estate would be held on trust by the substituted personal representative for the claimant, not by the former executors.
3. Construction of the order. Applying the approach in Sans Souci Limited v VRL Services Limited [2012] UKPC 6 and JSC BTA Bank v Ablyazov (No. 10) [2015] UKSC 64, the order was construed according to its natural and ordinary meaning, read in its historical and factual context and having regard to its purpose. The order, made by consent after prolonged non-administration, clearly intended the fourth defendant to replace the first and second defendants as personal representatives and ultimately to hold the residuary estate.
4. Dominica property. The court could not determine whether the property in Dominica had vested in the first defendant. The issue concerned foreign immovable property, and the parties had not addressed the court on the relevant law of Dominica, the effect of the English grant, or the absence of a Dominican grant.
5. Indemnity. The first defendant was not entitled to an indemnity under clause 12(c) of the will or otherwise. She had never been trustee of the residuary estate, and acts undertaken in 2017 occurred after her substitution as personal representative. Any proven advance for estate administration would be a debt to be dealt with by the fourth defendant, but did not confer a right to occupy the property. The issue of removing the fourth defendant as personal representative remained outstanding.

Not stated in the judgment.