When a loved one passes away, it is always a difficult time for the family. What most families will not want to be caught up in is protracted legal claims that have arisen by virtue of the deceased’s will. However, unfortunately, legal claims are sometimes necessary. One preliminary issue that might need resolving is where an executor derives their title from and therefore, when can they begin a claim if one becomes necessary.
There are numerous judgments and pieces of case law in respect of this subject but I am going to begin with Chetty v Chetty [1916] 1 A.C. 603 which provides:
“It is quite clear that an executor derives his title and authority from the will of his testator and not from any grant of probate. The personal property of the testator, including all rights of action, vests in him upon the testator’s death, and the consequence is that he can institute an action in the character of executor before he proves the will. He cannot, it is true, obtain a decree before probate, but this is not because his title depends on probate, but because the production of probate is the only way in which, by the rules of the Court, he is allowed to prove his title.”.
Chetty is referred to within the matter of Biles v Caesar [1956] EWCA Civ by Lord Justice Denning: “it has to be remembered that the title of the executor derives from the will and speaks from the will, as Lord Parker pointed out in the case of Chetty v Chetty”. It is further referred to by Lord Justice Hodson: “It is an a fortiori case compared with Chetty’s case, to which reference has been made, from which it is clear that an executor derives his title and authority from the will so that he can institute an action in the character of executor before he proves the will.”
Millburn-Snell & Ots v Evans [2011] EWCA Civ 577 also makes reference to Chetty: “That is because whereas an executor derives his title to sue from the will and not from the grant of probate – and so can validly sue before obtaining a grant (although he will have to obtain it later in order to prove his title) – an administrator derives his title to sue solely from the grant of administration (see Chetty v Chetty [1916] 1 AC 603, at 608, 609, per Lord Parker of Waddington).”
What can be seen from these extracts is that an executor derives their title and authority from the will and not the grant of probate. An executor can institute an action before they ‘prove the will’. However, the grant of probate will still be needed as that proof before the Court can make an order or judgment.
The extract from Millburn-Snell shows that the position is not the same for an administrator who drives their title solely from the grant of administration. Practitioners should be mindful of the difference.
Members of Becket Chambers can give advice on wills and probate matters. Please contact clerks@becket-chambers.co.uk for further information.
