Commentary on Sections Conditions for appointment of judicial factor
12.Section 4 sets out the conditions which a court must consider to be satisfied in relation to an estate in order to appoint a judicial factor under section 1(1) or (3). If the court does not consider that the conditions are met, then it will not be competent for the court to appoint a judicial factor.
13.The first condition, set out in subsection (1)(a), is that an estate either requires to be managed, or requires actings to be carried out in relation to it. Subsection (2) provides that “actings” includes any actions required to hold, administer, or protect the estate for the benefit of any persons who have an interest in that estate. This is not an exhaustive list and so if other actions in relation to the estate are required then it may still be competent for the court to appoint a judicial factor on that estate.
14.The second condition, set out in subsection 1(b), is that the court must be satisfied either that it is not possible, practicable, or sensible for the person who would ordinarily be responsible for the required actings or management to carry them out, or that it would be to the advantage of the estate for a judicial factor to be appointed to carry them out. It might not be possible for a person to carry out actings if, for example, they are not old enough to legally do so. It might not be practical for a person to carry out actings if that person lives abroad, or it might not be sensible for a person to carry out actings where there is a dispute between partners of a partnership which would otherwise be responsible for the estate.