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In contrast to the previous law, where the insolvent estate of a deceased person is being administered in bankruptcy, the provisions of the bankruptcy legislation for setting aside transactions at an undervalue or preferences, rendering dispositions void, and restricting proceedings and the rights of creditors under execution or attachment, apply.

Whether or not such an estate is being administered in bankruptcy, an application can be made for an order nullifying the effect of a transaction defrauding creditors.

Where an insolvency administration order has been made in respect of the insolvent estate of a deceased person and the petition for the order was presented after 2 April 2001 and within the period of five years beginning with the day on which he died, and immediately before his death he was beneficially entitled to an interest in any property as joint tenant, then for the purpose of securing that debts and other liabilities to which the estate is subject are met, the court may, on an application by the trustee appointed pursuant to the insolvency administration order, make an order requiring the survivor to pay to the trustee an amount not exceeding the value lost to the estate. In determining whether to make such an order, and determining its terms, the court must have regard to all the circumstances of the case, including the interests of the deceased’s creditors and of the survivor; but, unless the circumstances are exceptional, the court must assume that the interests of the deceased’s creditors outweigh all other considerations.

Where the estate is insolvent, contingent liabilities are provided for in accordance with the rules applicable in bankruptcy. Where the estate is solvent the personal representative is not entitled as against creditors to make provision for contingent liabilities because such liabilities do not constitute a debt until the contingency has arisen, and accordingly a creditor, even of inferior degree, is entitled to be paid in full without regard to the contingency that the liability may ripen into a debt.

A personal representative, however, can only distribute the assets among the beneficiaries without regard to contingent liabilities at his peril. Accordingly, if the estate comprises shares in a joint stock company not fully paid up, and the executor pays a legacy, and a call is subsequently made upon the shares, the representative is liable to pay the amount of the legacy toward satisfaction of the call.

Statutory protection is given to a personal representative or trustee who as such:

  • (1)     is liable for any rent, covenant or agreement reserved by or contained in any lease;
  • (2)     is liable for any rent, covenant or agreement payable under or contained in any grant made in consideration of a rent charge;
  • (3)     is liable for any indemnity given in respect of any such rent, covenant or agreement; or
  • (4)     has entered into or may be required to enter into an authorised guarantee agreement with respect to any lease comprised in the deceased’s estate or the trust estate.


In relation to the fourth category, the statutory protection is available without more in the case of a potential liability to enter into an authorised guarantee agreement, and in the case of such an agreement already entered into it is available where the personal representative or trustee satisfies all liabilities under the agreement which may have accrued and been claimed up to the date of distribution. Thereafter he may distribute the residuary real and personal estate of the deceased testator or intestate, or, as the case may be, the trust estate (other than the fund, if any, set apart to answer a future claim to a fixed and ascertained sum), to or among the persons entitled, without appropriating any part, or any further part, as the case may be, of the estate to meet any future liability under the lease or grant, or under any authorised guarantee agreement, or any potential liability to enter into any authorised guarantee agreement, and, notwithstanding such distribution, he will not be personally liable in respect of any subsequent claim under the lease or grantor under any authorised guarantee agreement.

This statutory protection does not, however, extend to protect an executor who by entering into possession of his testator’s leaseholds has incurred in addition to his liability as an executor the personal liability of an assignee of the term.

Where the estate is subject to contingent liabilities not within the statutory protection a personal representative ought not to distribute the assets amongst the beneficiaries without the sanction of the court. Provided the personal representative keeps back nothing which ought to be disclosed to the court, the court order authorising distribution is a complete indemnity to him in respect of the consequent application of the assets, and it is therefore unnecessary for the court to retain funds in court for his protection, or, it is conceived, to direct the beneficiaries to indemnify him. The court will, however, order the retention of sufficient sums in court where the contingent liability of the estate is dependent only on the survivorship of annuitants. Where the personal representative, by remaining in possession of the deceased’s leaseholds, renders himself liable to be sued in his personal character as assignee of the term, he is entitled to be secured against the lessor’s claims by retention of assets or by a proper indemnity from the beneficiaries, unless he has already executed an assent in respect of those leaseholds.