Better safe than sorry

The accepted practice of applying for a grant ad colligenda bona without notice has been deprecated by Richards J in the recent decision of Ghafoor v Cliff [2006] EWHC 825 (Ch), a case which involved an underlying contentious probate dispute.

Pre-Ghafoor practice

The rule has always been that applications for grants ad colligenda bona are made without notice. Both Tristram and Coote's Probate Practice (29th ed. 2003) at para 11.343 and Williams, Mortimer and Sunnucks: Executors, Administrators and Probate (18th ed. 2000) at paras 24'“48 state that they should be made without notice, citing rule 52(b) of Non-Contentious Probate Rules (NCPR) 1987.

Richards J held that the grant in this case should not have been made without notice to the sons for five reasons:

1) It was clear to the solicitors and to the registrar that this was a highly contentious matter.

2) The solicitors were making very serious allegations of dishonesty and misappropriation.

3) The sons were three out of four executors and the grant, if made, would interfere with any steps being taken by them to deal with the estate.

4) It was not the case in which notice would frustrate the application, in contrast to many applications for freezing and search orders.

5) The urgency was not such as to preclude notice and, in any event, informal notice could have been given.

Dealing with the solicitors' contention that they followed the accepted practice and the guidance in the leading works, the judge said that rule 52(b) NCPR 1987 did not specify that an application should be made without notice. He referred to rule 27(4) NCPR 1987 which provides that a grant of administration 'may be made to any person entitled thereto without notice to other persons entitled in the same degree' and emphasised the word 'may'.

The judge commented that this power of appointment without notice is discretionary, and in the case of a known dispute, there can be a determination inter partes (rule 27(6) and (8) NCPR 1987).

The judge also referred to rule 61(1) NCPR 1987 which provides that a registrar may require any application to be made by summons and rule 66(1) which provides that the registrar may direct service of the summons on such person or persons as he may direct.

Further, the registrar is given power by rule 61(1) to require the application to be made to a judge and rule 7(1)(b) provides that no grant is to be made by a registrar in any a case in which it appears to him that a grant ought not to be made without the directions of a judge or a district judge.

The judge concluded that in view of the particular circumstances of this case, it was in his view a candidate for either of these procedures and, if the claimants had been able to respond to Mr Cliff's affidavit, it would certainly have been suitable for a hearing by a judge or district judge.

When should notice be given?

The judge said that in the majority of cases, applications for a grant ad colligenda bona are not contentious and are properly and sensibly made without notice but in view of the particular circumstances of the Ghafoor case notice of the application should have been given.

It is clear, therefore, that no notice is necessary in applications which are not contentious, but notice should be given in applications which are highly contentious.

However, there is a grey area concerning applications which are contentious but not highly contentious, such as where there is a potential dispute about the validity of a will and a grant ad colligenda bona is sought by personal representatives to safeguard the assets pending resolution of expectant probate proceedings.

It is submitted that in these circumstances a without notice procedure can be followed, providing that full details of probate dispute are given and a duty to make full and frank disclosure is complied with. See also Shepherd v Wheeler [2000] WTLR 1175, where a grant of letters of administration was revoked on grounds of material non-disclosure by the applicant.

On the other hand, if there appear to be tactical reasons in seeking a grant ad colligenda bona, it would be prudent to give notice of the application.

What made the application in the Ghafoor case unsuitable for a without notice procedure was the fact that the applicants' affidavit contained serious allegations of dishonesty and other misconduct against the three brothers (all of whom are lawyers), which although the brother maintained the allegations were wholly unfounded caused them considerable distress and may have caused them professional embarrassment.

Points for practitioners

The Ghafoor decision is an unequivocal reminder that a duty to make full and frank disclosure on an application for a grant ad colligenda bona is paramount and failure to comply with this duty may lead to the revocation of the grant.

As described by Counsel (Patrick Talbot QC (Serle Court) and Andrew De La Rosa (10 Old Square)) for the claimants, the daughter's solicitors' conduct in obtaining the grant was 'a conspicuous example of the deliberate abuse of a without prejudice procedure'. Richards J ordered that the solicitors and their client bear the claimants' costs of the revocation proceedings.

In cases where you may be seeking to reinvest savings, trace beneficiaries, carry out urgent repairs to the property or realise perishable assets, it is submitted that an application can proceed without notice.

In highly contested cases, such as the Ghafoor case involving allegations of misconduct, an application should proceed on notice.

In the cases falling between such obviously not contentious and highly contentious cases, it may be safer to give notice of your application than risk revocation of the grant on this ground and the expense of revocation proceedings.