Schedule 3: determination of date when representation is first taken out
92.Section 7 and Schedule 3 amend section 23 of the Inheritance (Provision for Family and Dependants) Act 1975 and equivalent provisions in other statutes which require certain types of grant to be left out of account when determining the date when representation with respect to the estate of a deceased person was first taken out. These are section 31(9) of the Matrimonial Causes Act 1973, section 20(4) of the Administration of Justice Act 1982, paragraphs 7 and 11 of Schedule 1 to the Children Act 1989, and paragraph 60 of Schedule 5 to the Civil Partnership Act 2004.
93.The significance of the determination of this date depends on the particular statutory context. An application for an order under section 2 of the 1975 Act, for example, must be made within six months of this date unless the court gives permission for a late application (see section 4 of the 1975 Act).
94.Under section 23 (and the other statutory provisions amended by Schedule 3) grants limited to settled land and to trust property were expressly left out of account as were grants limited to either real estate or to personal estate, unless a grant limited to the remainder of the estate had previously been made or was made at the same time. There are a number of other types of grant which give the personal representatives certain powers (for example, to collect in the assets of the estate and protect them or to represent the estate in litigation) but do not permit any property in the estate to be distributed. There was uncertainty over whether the making of such a grant counts as the first taking out of representation for the purposes of section 23 (and by analogy for the various purposes in the other statutes which use the same wording). There was also uncertainty over the status for these purposes of a grant made outside the United Kingdom.
95.Section 7 and Schedule 3 clarify this uncertainty by substituting in each case new provisions in place of the former provisions. These maintain the current position by leaving out of account grants limited to settled land and to trust property as well as grants limited to either real estate or to personal estate, unless a grant limited to the remainder of the estate has previously been made or is made at the same time. A grant limited to trust property is issued where the deceased held legal title to property as trustee for others and there is no other estate for which a grant is required. A limited grant is needed to permit the personal representatives to deal with the trust property but it does not permit the distribution of any of the deceased’s own property. Similarly, succession to settled land is governed by special rules and is not available for distribution by the personal representatives as part of the deceased’s estate. The new provisions expressly exclude from consideration any other grant which also does not permit any of the estate to be distributed. The new provisions also require grants made outside the United Kingdom to be left out of account. For these purposes, a grant which is “resealed” in the United Kingdom under the Colonial Probates Act 1892 is treated as a grant made in the United Kingdom. Any such grant is taken to have been made on the date it was sealed and not the date on which the original grant was taken out.