Philip King v Stephen King

Where several persons have equal entitlement to a grant of administration, the court has a broad discretion to select one or more applicants, taking the evidence as a whole. Relevant considerations may include suitability, conflicts of interest, the beneficiaries’ views, proportionality, cost and the efficient administration of the estate.

Under Senior Courts Act 1981 s 116, the court may pass over all entitled applicants where special circumstances make that necessary or expedient. Rivalry, potential disputes about beneficiaries and the risk of further litigation may justify appointing an independent professional administrator. The appeal from a registrar under the applicable probate rules is by way of rehearing, so the judge decides the matter afresh.

The deceased died intestate, leaving two sons, Philip and Stephen, who were equally entitled to seek a grant of letters of administration. The District Probate Registrar appointed Stephen without a hearing. Philip appealed, alleging procedural unfairness and contending that Stephen was unsuitable because of alleged dishonesty, conflicts of interest and misconduct.

The appeal was governed by the retained provisions of the Rules of the Supreme Court 1965. The central questions were whether the appeal should be reheard afresh, whether either son should be appointed, and whether the circumstances justified passing over both applicants in favour of an independent administrator.

1. The appeal was by way of rehearing. The judge was required to consider the evidence afresh and exercise the discretion independently, while giving the registrar’s decision such weight as it deserved. Most complaints about the registrar’s procedure therefore did not require determination.

2. Persons in the same class under r 22(1) of the Non-Contentious Probate Rules 1987 have equal entitlement, but the court may select one applicant or several, subject to the statutory maximum. The discretion is at large. Factors identified in probate texts and authorities may assist, but no single factor is determinative.

3. The court’s overriding concern is the interests of the estate and beneficiaries as a whole. Administration should be lawful, efficient and proportionate to the estate’s value. A professional administrator may be more expensive, but may reduce family conflict, focus disputes about entitlement and avoid further litigation.

4. Section 116 of the Senior Courts Act 1981 requires special circumstances which make it necessary or expedient to appoint someone other than the person otherwise entitled. Those circumstances may include a dispute between rival applicants where an independent administrator would avoid litigation and delay. The potential breadth of the beneficiary class, possible disputes over distribution and the need for objective assessment constituted such circumstances here.

5. Philip was unsuitable because his conduct demonstrated a lack of proportionality and an inability to distinguish material from immaterial issues. Although concerns existed about Stephen’s conduct, they did not justify appointing Philip or retaining Stephen in circumstances where independent administration better served the estate.

6. The court should not appoint rival applicants jointly unless it is clear that they can act together. Here both applicants were passed over and an independent professional administrator was appointed.

7. The appeal was allowed in part. The registrar’s order was set aside, Stephen’s grant was revoked, and a grant was ordered to issue to Adam Draper of Rothley Law Ltd under s 116. Stephen was required to transfer estate assets to the new administrator and provide specified documents. Costs of Stephen’s administration work were payable from the estate, subject to detailed assessment if necessary.

1. High Court (Family Division) — The appeal from the District Probate Registrar was allowed in part. The order appointing Stephen was set aside, his grant was revoked, and an independent administrator was appointed.