A brief look at the options available to PRs when faced with unlawful occupation of the deceased’s home pending realization and / or distribution of the estate.


Three times this year I have been involved in claims for the possession of the deceased’s home when, against the wishes of the PRs, family members who were also beneficiaries of the deceased’s estate have remained in possession of the house after the deceased’s death. In all three cases, Part 8 claims were originally brought against the beneficiaries under section 14 of The Trusts of Land and Appointment of Trustees Act 1996 (‘TLATA’) for possession and an order for sale. Unfortunately this is the wrong legal basis for the claim and will normally lead to the claim being dismissed. This article is intended to explain why and to outline briefly the correct basis and procedure.

The nature of rights under a will or in the estate

The key underlying reason for this is that whilst an estate remains unadministered, no beneficiary has an interest in any of the estate’s property, even in property which has specifically been given to him or her by the will. The rights of beneficiaries of unadministered estates extend no further than a right that the estate will be properly administered (Marshall v Kerr [1995] 1 AC 148). On the hand, the PRs hold the property in law and equity, subject to what amounts to a fiduciary duty to administer the estate properly and distribute it according to the terms of the will or intestacy rules.

The implication of this is that even if a person is a beneficiary under a will, be they a residuary beneficiary or even a specific legatee of the property in question, he or she has no right, legal or equitable, to occupy the property without the permission of the PRs.

It is of course true that the powers contained in TLATA apply to PRs just as they do to trustees but with ‘appropriate modifications’ (s. 18). However, it is not thought that the rights of occupation provided to beneficiaries of trusts by TLATA extend to the beneficiaries of unadministered estates, so as to prevent PRs from obtaining possession of the deceased’s home, even if the person occupying the home is a beneficiary of the estate.

The rationale for this is that under s. 12 of TLATA, a person only has a right of occupation if he or she has ‘an interest in possession in a trust of land’, whereas a beneficiary of an unadministered estate has (whilst the estate is being administered) only a right that the estate be properly administered and no more. Therefore, if possession of the property is required for the proper administration of the estate, the PRs should be able to take steps to obtain possession, notwithstanding the provisions of TLATA.

Quite apart from all this, and vitally, it must be remembered that by virtue of s. 18 (1) of TLATA, PRs are specifically prevented from making applications under s. 14 of the same act.

Obtaining possession against a beneficiary

The first thing to do is to check thoroughly that the beneficiary does not have any other independant right to occupy the property, for example under a constructive trust or a proprietary estoppel. If not, then the continued occupation of the property is deemed to be with the permission of the PRs (therefore no occupation rent can be claimed from them).

The PRs may terminate the right to occupy by serving a notice to quit on the beneficiary and their family if they occupy with him or her (Williams v Holland [1965] 1 WLR 739). To comply with s. 5 of The Protection from Eviction Act 1977, the notice must give a period of at least 4 weeks to vacate the property and it should, in my view, contain the prescribed information (amended appropriately) as detailed in the Notices to Quit (Prescribed Information) Regulations (SI 1988/2201).

Once the notice period has expired, the occupier should become liable for mesne profits, which can be calculated by reference to a fair market rent for the property.

If the occupier fails to vacate at the end of the notice period, then the PRs should commence a Part 55 possession claim against him or her (and their family if they occupy with them) as a trespasser or trespassers The Interim Possession Order procedure will probably not be available because the occupier will, except in very unusual circumstances, have originally commenced their occupation with permission.


Perhaps the main point to take note of here is that PRs are, unlike ‘normal’ trustees (in fact PRs are not really trustees of the estate at all as they hold estate property in law and equity subject to a duty to administer and distribute it according to the terms of the will or Intestacy Rules), unable to bring claims under s.14 TLATA. Therefore, even in circumstances where someone who is a beneficiary of the estate remains in possession of the property against the wishes of the PRs, the correct route to remove them, if that is necessary, is to make a claim under Part 55 having first established them as a trespasser.

Andrew Wilson

20th November 2015

Disclaimer: The information provided in this article does not constitute legal advice and is not intended by either the author or by 1 Essex Court to do so.

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