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I CLAIMS RELATING TO THE ADMINISTRATION OF ESTATES AND
TRUSTS
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Examples of claims under rule
64.2(a)
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|
| 1 |
The following are examples of the types of claims which
may be made under rule 64.2(a)
– |
| | (1)
| a claim for the determination of any of the
following questions –|
| | (a)
| any question as to who is included in any
class of persons having –|
| | (i)
| a claim against the estate of a
deceased person; |
|
| | (ii)
| a beneficial interest in the estate
of such a person; or |
|
| | (iii)
| a beneficial interest in any property
subject to a trust; |
|
|
| | (b)
| any question as to the rights or interests
of any person claiming –|
| | (i)
| to be a creditor of the estate of a
deceased person; |
|
| | (ii)
| to be entitled under a will or on the
intestacy of a deceased person; or |
|
| | (iii)
| to be beneficially entitled under a
trust; |
|
|
|
| | (2)
| a claim for any of the following remedies
–|
| | (a)
| an order requiring a trustee –|
| | (i)
| to provide and, if necessary, verify
accounts; |
|
| | (ii)
| to pay into court money which he
holds in that capacity; or |
|
| | (iii)
| to do or not to do any particular
act; |
|
|
| | (b)
| an order approving any sale, purchase,
compromise or other transaction by a trustee (whether
administrative or dispositive);
or |
|
| | (c)
| an order directing any act to be done which
the court could order to be done if the estate or trust in question were being
administered or executed under the direction of the court. |
|
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Cross-ref corrected March 2003,
Text inserted after paragraph 1 w/e from 1 October 2009,
Text substituted in paragraph 1(2)(b) w/e from 1 October 2009. |
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Determining certain claims under rule 64.2(a) without a
hearing
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|
| 1A.1 |
Where a claim is made by a trustee for a remedy within
paragraph 1(2)(b) (including a case where the remedy sought is approval of a
transaction affected by conflict of interests or duties), the court may be
requested to determine the claim without a hearing. |
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| 1A.3 |
The claim form must be accompanied by – |
| | (a)
| a witness statement
setting out the material facts justifying determination without a hearing and
in particular –|
| | (i)
| identifying those
affected by the remedy sought and |
|
| | (ii)
| detailing any
consultation of those so affected and the result of that
consultation; |
|
|
| | (b)
| the advice of a lawyer
having a 10-year High Court qualification within the meaning of section 71 of
the Courts and Legal Services Act 1990Acts on the merits of the
claim; |
|
| | (c)
| a draft order for the
remedy sought; |
|
| | (d)
| a statement of
costs. |
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| 1A.4 |
If the court considers that the case does not require
an oral hearing, it will proceed to consider the claim on the papers. |
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| 1A.5 |
If the court considers that an oral hearing is
required, it will give appropriate directions. |
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| 1A.6 |
If the court considers it appropriate, it will make the
order sought and may direct that the claimant must – |
| | (a)
| serve notice of the order
on the interested parties in accordance with rule 19.8A, and |
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Applications by trustees for directions
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| 2 |
A separate practice direction contains guidance about
applications by trustees for directions. |
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Administration orders –
rule 64.2(b)
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| 3.1 |
The court will only make an administration order if it
considers that the issues between the parties cannot properly be resolved in
any other way. |
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| 3.2 |
If, in a claim for an administration order, the
claimant alleges that the trustees have not provided proper accounts, the court
may – |
| | (1)
| stay the proceedings for a specified period, and
order them to file and serve proper accounts within that period; or |
|
| | (2)
| if necessary to prevent proceedings by other
creditors or persons claiming to be entitled to the estate or fund, make an
administration order and include in it an order that no such proceedings are to
be taken without the court's permission. |
|
|
| 3.3 |
Where an administration order has been made in relation
to the estate of a deceased person, and a claim is made against the estate by
any person who is not a party to the proceedings – |
| | (1)
| no party other than the executors or
administrators of the estate may take part in any proceedings relating to the
claim without the permission of the court; and |
|
| | (2)
| the court may direct or permit any other party to
take part in the proceedings, on such terms as to costs or otherwise as it
thinks fit. |
|
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| 3.4 |
Where an order is made for the sale of any property
vested in trustees, those persons shall have the conduct of the sale unless the
court directs otherwise. |
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Applications under the Variation of Trusts Act 1958Acts –
rule 64.2(c)
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| 4.1 |
Where children or unborn beneficiaries will be affected
by a proposed arrangement under the Act, the evidence filed in support of the
application must – |
| | (1)
| show that their litigation friends or the
trustees support the arrangements as being in the interests of the children or
unborn beneficiaries; and |
|
| | (2)
| unless paragraph 4.3 applies or the court orders
otherwise, be accompanied by a written opinion to this effect by the advocate
who will appear on the hearing of the application. |
|
|
| 4.2 |
A written opinion filed under paragraph 4.1(2) must
– |
| | (1)
| if it is given on formal instructions, be
accompanied by a copy of those instructions; or |
|
| | (2)
| otherwise, state fully the basis on which it is
given. |
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| 4.3 |
No written opinion needs to be filed in support of an
application to approve an arrangement under section 1(1)(d) of the Act
(discretionary interests under protective trusts). |
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| 4.4 |
Where the interests of two or more children, or two or
more of the children and unborn beneficiaries, are similar, only a single
written opinion needs to be filed. |
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Applications under section 48 of the Administration of Justice
Act 1985 – rule 64.2(d)
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|
| 5 |
A Part 8 claim form for an application by trustees
under section 48 of the Administration of Justice Act 1985ActsActs (power of High Court
to authorise action to be taken in reliance on legal opinion) may be issued
without naming a defendant, under rule 8.2A. No separate application for
permission under rule 8.2A need be made. |
| Cross-ref corrected March 2003. |
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Prospective costs orders
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| 6.1 |
These paragraphs are about the costs of applications
under rule 64.2(a). |
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| Cross-ref corrected March 2003. |
6.2 |
Where trustees have power to agree to pay the costs of
a party to such an application, and exercise such a power, rule 48.3 applies.
In such a case, an order is not required and the trustees are entitled to
recover out of the trust fund any costs which they pay pursuant to the
agreement made in the exercise of such power. |
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| 6.3 |
Where the trustees do not have, or decide not to
exercise, a power to make such an agreement, the trustees or the party
concerned may apply to the court at any stage of proceedings for an order that
the costs of any party (including the costs of the trustees) shall be paid out
of the fund (a ‘prospective costs order’). |
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| 6.4 |
The court, on an application for a prospective costs
order, may – |
| | (a)
| in the case of the trustees' costs,
authorise the trustees to raise and meet such costs out of the fund; |
|
| | (b)
| in the case of the costs of any other
party, authorise or direct the trustees to pay such costs (or any part of them,
or the costs incurred up to a particular time) out of the trust fund to be
assessed, if not agreed by the trustees, on the indemnity basis or, if the
court directs, on the standard basis, and to make payments from time to time on
account of such costs. A model form of order is annexed to this Practice
Direction. |
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|
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| 6.5 |
The court will always consider whether it is possible
to deal with the application for a prospective costs order on paper without a
hearing and in an ordinary case would expect to be able to do so. The trustees
must consider whether a hearing is needed for any reason. If they consider that
it is they should say so and explain why in their evidence. If any party to the
application referred to in paragraph 6.1 above (or any other person interested
in the trust fund) considers that a hearing is necessary (for instance because
he wishes to oppose the making of a prospective costs order) this should be
stated, and the reasons explained, in his evidence, if any, or otherwise in a
letter to the court. |
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| 6.6 |
If the court would be minded to refuse the application
on a consideration of the papers alone, the parties will be notified and given
the opportunity, within a stated time, to ask for a hearing. |
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| 6.7 |
The evidence in support of an application for a
prospective costs order should be given by witness statement. The trustees and
the applicant (if different) must ensure full disclosure of the relevant
matters to show that the case is one which falls within the category of case
where a prospective costs order can properly be made. |
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| 6.8 |
The model form of order is designed for use in the more
straightforward cases, where a question needs to be determined which has arisen
in the administration of the trust, whether the claimants are the trustees or a
beneficiary. The form may be adapted for use in less straightforward cases, in
particular where the proceedings are hostile, but special factors may also have
to be reflected in the terms of the order in such a case. |
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II CHARITY PROCEEDINGS
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Role of Attorney-General
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| 7 |
The Attorney-General is a necessary party to all
charity proceedings, other than any commenced by the Charity Commissioners, and
must be joined as a defendant if he is not a claimant. |
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Service on Charity Commissioners or Attorney-General
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| 8 |
Any document required or authorised to be served on the
Commissioners or the Attorney-General must be served on the Treasury Solicitor
in accordance with paragraph
2.1 of the Practice Directionpdp-66supplementing Part 66. |
| New text substituted in para
8
w/e from 2 October 2006. |
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Applications for permission to take charity proceedings – rule 64.6
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| 9.1 |
The claim form for an application under section 33(5)
of the Act must state – |
| | (1)
| the name, address and description of the
applicant; |
|
| | (2)
| details of the proceedings which he wishes to
take; |
|
| | (3)
| the date of the Commissioners' refusal to grant
an order authorising the taking of proceedings; |
|
| | (4)
| the grounds on which the applicant alleges that
it is a proper case for taking proceedings; and |
|
| | (5)
| if the application is made with the consent of
any other party to the proposed proceedings, that fact. |
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| 9.2 |
If the Commissioners have given reasons for refusing to
grant an order, a copy of their reasons must be filed with the claim
form. |
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Appeals against orders of the Charity Commissioners
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| 10 |
Part 52 applies to any appeal against an order of the
Charity Commissioners. Section III of the practice directionpdp-52supplementing Part
52 contains special provisions about such appeals. |