Q. My sister passed away two years ago. She was married, but divorced about 20 years ago. She had one child, but unfortunately they weren’t on speaking terms. Her will appointed our mother as executor, but she passed away some time ago. My sister left the bulk of her assets to her siblings, with the remainder to her son. The reality is that there is very little, if anything, to be left to her son. This was intentional, we believe. We have tried to make contact with our nephew to do the necessary legal work, but he is not too inclined to do the work where he is getting essentially nothing from the will. What can be done?
Dear Reader,
In circumstances where the executor of a will cannot act (due to death, incapacity, or being simply unwilling), the law sets out who might next be entitled to do the necessary legal work to take out the grant of administration with will annexed.
In general terms, the person entitled is the ‘Residuary Legatee’, i.e. the person who inherits the remainder of the estate after all the specific gifts under the will are made. This varies depending on the will, of course, but it appears to be your nephew in this case.
If your nephew does not wish to do the works, he should sign a renunciation. This confirms he is renouncing the right to take out the grant. It does not mean he is giving up his right to receive whatever share of the estate he might be due. If he does sign this form, it would fall firstly to your father (if he is alive) or to you or your siblings to seek to extract the grant.
If he fails to sign the renunciation, the proposed administrator can seek to file a citation with the probate office of the high court. The proposed administrator would need to prepare an affidavit setting out their efforts to deal with the estate, and the son’s refusal to sign the renunciation. The citation would need to be served on the son. If he makes no reply, the administrator can move forward
Firstly, your solicitor should check to see if the grant of administration has been taken out. You should try and gather up a value of the assets, bank accounts etc. You should also try and take up a copy of your sister’s divorce order – simply to ensure that her ex-husband is barred from claiming any element of the estate.