Administration of Estates Act 1974

PART I
PRELIMINARY

1 Interpretation

PART II
GRANTS OF PROBATE AND ADMINISTRATION

2 Jurisdiction

3 Time lapse before grant

4 Application for grant or revocation of grant

5 Issue of grants

6 Caveat against issue of grant

7 Power to grant represen tation of real and personal estate separately or to gether

8 Register of grants

9 Summons to executor to prove or renounce

10 Revocation of grant

11 Provisions as to the num ber of estate representa tives

12 Trust corporations

13 Discretion of Court as to persons to whom admin istration is to be granted

14 Administration pendente lite

15 Administration during minority of executor

16 Administration with will annexed

17 Power to require adminis trators to produce sureties

18 Resealing of foreign grants

19 Grant in special case

20 Applications in small es tates

21 Certificate in lieu of grant

21A Varying aggregate value in sections 20(1) and 21(1)

PART III
DEVOLUTION OF REAL ES TATE UPON ESTATE REPRE SENTATIVES

22 Assimilation of real estate and personal estate

23 Trust for beneficiaries

24 Conveyance of real estate by estate representatives

PART IV
EXECUTORS AND ADMINIS TRATORS

25 Cesser of right of executor to prove

26 Withdrawal of renuncia tion

27 Executor of executor rep resents original testator

28 Right of proving executors to exercise powers

29 Vesting of estate of intes tate between death and grant of administration

30 Executor not to act while administration is in force

31 Continuance of legal pro ceedings after revocation of temporary administra tion

32 Rights and liabilities of administrator

33 Duty of estate representa tives

34 Protection of persons acting on probate or ad ministration

35 Liability of person fraud ulently obtaining or re taining estate of deceased

36 Liability of estate of estate representative

37 Administration of estate falling to the Government

PART V
ADMINISTRATION OF ASSETS

38 Real and personal estate of deceased are assets for payment of debts

39 Power of estate represen tative to sell

40 Protection of bona fide purchasers

41 Abolition of rule Allhusen v. Whittell

42 Retainer, preference and the payment of debts by estate representatives

43 Administration of assets

44 Charges on property of a deceased person to be paid primarily out of the property charged

45 Validity of conveyance not affected by revocation of grant

46 Right to follow property and powers of the Court in relation thereto

47 Additional powers of es tate representative

48 Powers of estate repre sentative as to appropria tion

49 Power to appoint trustees of infants property

50 Discretionary power of estate representative as to giving possession of land and powers of the Court

51 Power to postpone distri bution

PART VI
MISCELLANEOUS

52-53 [repealed]

54 Places for deposit of wills

55 Official copies of wills

56 Application of Act

57 Rules

58 [repealed]

59 Repeals [omitted]

60 Amendment of the Trustee Act 1936 [omitted]

61 Non-application of certain English statutes enacted before July 11, 1612

62 Commencement [omitted]

SCHEDULES

First Schedule - Part I

Rules as to Payment of Debts where the Estate is Insolvent

First Schedule - Part II

Order of Application of Assets where the Estate is Solvent

Second Schedule - Additional Powers of Estate Representative

Third Schedule - Repeals en acted [omitted]

"residuary estate of the intestate" means every beneficial interest of the intestate in property which (otherwise than by virtue of a special power of appointment) he could, if of full age and capacity, have disposed of by his will, less all such funeral, testamentary and administration expenses (and, in the case of a partial intestacy, pecuniary legacies), debts and other li abilities as are properly payable thereout having regard to the rules of administration contained in this Act;

"rules" means rules made in accordance with the provisions of this Act, and "rules of Court" include, in relation to non-con tentious or common form probate business, probate rules;

"testamentary cause or matter" includes all causes or matters relating to the grant or revocation of probate or administra tion;

"trust corporation" means �

(a) a corporation either appointed by the Court in any par ticular case to be a trustee or licensed as a trust company under the Trust Companies Act 1991 [title 17 item 6]; and

(b) the person for the time being holding office as public trustee in his capacity as corporation sole under the Public Trustee Act 1906 of the Parliament of the United Kingdom;

[definition of "trust corporation" amended by 1991:40 effective 16 September 1991]

"will" includes any testamentary instrument of which probate may be granted.

(2) References to the estate of a deceased person include prop erty over which the deceased exercises a general power of appointment by his will.

PART II
GRANTS OF PROBATE AND ADMINISTRATION

Jurisdiction

2 (1) Without prejudice to any provision of law, and subject to subsection (2), an affidavit made in support of an application to the Court for a grant in which the deponent states that the deceased person at the time of his death was ordinarily resident in Bermuda or that some property of the deceased person was then in Bermuda shall be conclu sive for the purpose of establishing that the Court has jurisdiction.

(2) Where the application is pending and it is shown to the Court that the deceased person was not ordinarily resident or did not have property in Bermuda, the Court may stay the proceedings and make such order as to the costs of the proceedings as it thinks fit.

Time lapse before grant

3 Unless the Court otherwise orders,

(a) no grant of probate or of administration with the will an nexed shall be made until at least seven days after the death of the deceased person; and

(b) no other grant of administration shall be made until at least fourteen days after the death of the deceased per son.

Application for grant or revocation of grant

4 An application for the grant or revocation of probate or adminis tration shall be made through the Registrar in the prescribed form.

Issue of grants

5 (1) Grants may be made in common form by the Registrar in the name of the Court and under the seal of the Court.

(2) No grant shall be made by the Registrar in any case in which there is contention until the contention is disposed of, or it ap pears to the Registrar that a grant ought not to be made without the di rection of the Court.

(3) Where it appears doubtful to the Registrar whether an ap plication for a grant should or should not be granted, or where any question arises in relation to a grant, or an application for a grant, the Registrar shall refer the matter to the Court, and the Court may direct the Registrar to proceed with the matter in accordance with such in structions as the Court may think necessary, or may forbid any further proceedings by the Registrar in relation to the matter, leaving the party applying for the grant to apply to the Court.

Caveat against issue of grant

6 A caveat against a grant of probate or administration may be entered in the Registry.

Power to grant representation of real and personal estate separately or together

7 Probate or administration in respect of the real estate of a de ceased person, or any part thereof, may be granted either separately or

together with probate or administration of his personal estate, and may also be granted in respect of real estate only where there is no personal estate, or in respect of a trust estate only, and a grant of administration to real estate may be limited in any way the Court thinks proper:

Provided that where the estate of the deceased is known to be insolvent, the grant of representation to the estate shall not be severed except as regards a trust estate.

8 (1) The Registrar shall continue to maintain in the Registry a register of all grants made in the Registry.

(2) The register maintained under this section may be in spected by any person on payment of such fee as may be required by law, without reference to the number of estates in respect of which the search is made.

Summons to executor to prove or renounce

9 The Court shall have power to summon any person named as executor in a will to prove or renounce probate of the will, and to do such other things concerning the will as were customary before 1 September 1974.

Revocation of grant

10 (1) Where it appears to the Court that �

(a) revocation of the grant is appropriate for the due and proper administration of the estate and the protection of the interests of the parties beneficially entitled thereto; or

(b) a grant either ought not to have been granted or con tains an error;

the Court may call in the grant and may revoke it.

(2) A grant may be revoked under subsection (1) without being called in if it cannot be called in.

Provisions as to the number of estate representatives

11 (1) A grant shall not be made to more than four persons in re spect of the same property and administration shall, if an infant is inter ested in the estate, be granted either to a trust corporation, with or with out an individual, or to not less than two individuals:

Provided that the Court in granting administration may �

(a) act on such prima facie evidence, furnished by the ap plicant or any other person, as to whether or not there is a minority or life interest, as may be prescribed by the rules;

(b) if it sees fit, grant administration to an individual.

(2) If there is only one estate representative (not being a trust corporation) then, during the minority of a beneficiary or the subsistence of a life interest and until the estate is fully administered, the Registrar may, on the application of any person interested or of the guardian or re ceiver of any such person, appoint one or more estate representatives in addition to the original estate representative in accordance with the rules.

(3) This section shall apply to grants made on or after 1 September 1974, whether the testator or intestate died before, on or after that date.

Trust corporations

12 (1) The Court may �

(a) where a trust corporation is named in a will as executor, whether alone or jointly with another person, grant pro bate to the corporation either solely or jointly with an other person, as the case may require; and

(b) grant administration to a trust corporation, either solely or jointly with another person,

and the corporation may act accordingly as executor or administrator, as the case may be.

(2) A grant shall not be made to a nominee on behalf of a trust corporation.

(3) Any person authorised for the purpose by a trust corpora tion or the directors or governing body thereof may, on behalf of the cor poration, swear affidavits, and do any other act or thing which the Reg istrar or the Court may require with a view to the making of a grant to the corporation, and the acts of a person so authorised shall be binding on the corporation.

(4) Where, on 31 August 1974, any interest in any estate is vested in a nominee on behalf of a trust corporation acting as the estate representative of a deceased person, such interest shall, by virtue of this Act, vest in the corporation, and the nominee shall be kept indemnified by the corporation in respect of such interest.

(5) Subsection (4) shall not apply to securities registered or in scribed in the name of a nominee but any such securities shall be transferred by the nominee to the corporation or as the corporation may direct.

(6) This section shall have effect whether the testator or the intestate died before, on or after 1 September 1974, and no such vesting or transfer shall operate as a breach of a covenant or condition against alienation or give rise to a forfeiture.

Discretion of Court as to persons to whom administration is to be granted

13 (1) In granting administration the Court shall have regard to the rights of all persons interested in the estate of the deceased person or the proceeds of sale thereof, and, in particular, administration with the will annexed may be granted to a devisee or legatee, and any such ad ministration may be limited in any way the Court thinks fit:

Provided that �

(a) where the deceased died wholly intestate as to his es tate, administration shall be granted to some one or more persons interested in the residuary estate of the intestate if they make an application for the purpose; and

(b) every applicant for a grant of administration shall give notice in accordance with the rules, of intention to apply for administration.

(2) This section shall apply only in the case of persons dying on or after 1 September 1974, and the Court in granting administration in the case of persons dying at any time before that date shall act in accor dance with the principles and rules in accordance with which it would have acted if this Act had not been passed.

Administration pendente lite

14 (1) Where any legal proceedings touching the validity of the will of a deceased person, or for obtaining, recalling or revoking any grant, are pending, the Court may grant administration of the estate of the de ceased to an administrator, who shall have all the rights and powers of a general administrator, other than the right of distributing the residue of the estate, and every such administrator shall be subject to the immedi ate control of the Registrar and act under his direction.

(2) The Court may, out of the estate of the deceased, assign to an administrator appointed under this section such reasonable remu neration as the Court thinks fit.

Administration during minority of executor

15 (1) Where an infant is sole executor of a will, administration with the will annexed shall be granted to his guardian, or to such other person as the Court thinks fit, until the infant attains the age of twenty-one years, and on his attaining that age, and not before, probate of the will may be granted to him.

(2) Where a testator by his will appoints an infant to be an ex ecutor, the appointment shall not operate to transfer any interest in the property of the deceased to the infant or to constitute him an estate rep resentative for any purpose unless and until probate is granted to him under this section.

Administration with will annexed

16 Administration with the will annexed shall continue to be granted in every case where such a grant was customary before 1 September 1974, and in such case the will of the deceased shall be per formed and observed in like manner as if probate thereof had been granted to an executor.

Power to require administrators to produce sureties

17 (1) As a condition of granting administration to any person the Court may, subject to the following provisions of this section and subject to and in accordance with the rules, require one or more sureties to guarantee that they will make good, within any limit imposed by the Court on the total liability of the surety or sureties, any loss which any person interested in the administration of the estate of the deceased may suffer in consequence of a breach by the administrator of his duties as such:

Provided that no guarantee shall be required as a condition of granting administration to a person who has an immediate beneficial in terest in the estate of the deceased or to a barrister and attorney unless the Court considers that there are special circumstances making it de sirable to require a guarantee.

(2) A guarantee given in pursuance of any requirement under this section shall enure for the benefit of every person interested in the administration of the estate of the deceased as if contained in a contract under seal made by the surety or sureties with every such person and, where there are two or more sureties, as if they had bound themselves jointly and severally.

(3) No action shall be brought on any such guarantee without the leave of the Court.

(4) This section does not apply where administration is granted to a trust corporation, a consular officer under the Consular Conventions Act 1957 [title 6 item 2], a nominee of the Government, or in such other cases as may be prescribed by the rules.

Resealing of foreign grants

18 (1) In this section "foreign grant" means any grant of probate or administration or other document purporting to be of the same nature granted by a court in �

(a) the United Kingdom or any British possession, colony or dependency; or

(b) a member nation of the Commonwealth; or

(2) A foreign grant may be resealed at the direction of the Court and under the seal of the Court upon application made in accordance with the rules and thereupon the foreign grant �

(a) is of the same force and effect in Bermuda as if it were made by the Court;

(b) is, as regards property in Bermuda, subject to any order of the Court to which any grant of the Court is subject; and

(3) For the purposes of this section and the rules, a duplicate or exemplification of a foreign grant sealed with the seal of the court by which it was granted or a copy of a foreign grant certified as correct by or under the authority of the court by which it was granted is as effective as the original.

(4) The Court may, in relation to the resealing of a foreign grant, exercise the power conferred by section 17 to require administra tors to produce sureties and the Court in making such a requirement shall have regard to the property of the deceased in Bermuda.

Grant in special case

19 Where it appears to the Court by reason of special circumstances that �

(a) it is necessary that the property of a deceased person be forthwith administered; or

(b) that some person other than the executor or a person to whom administration would be granted under section 13 be appointed to administer the property of a deceased person,

the Court may upon application and upon such notice, if any, as it may direct make a grant of administration to such person as it thinks fit and may impose such limitations and restrictions in the grant as it sees fit.

Applications in small estates

20 (1) Where a grant of probate or administration is sought and the whole property of the deceased is of an aggregate value not exceeding $20,000 so far as can be ascertained after reasonable inquiry, the Reg istrar or a clerk in the Registry authorised by him may �

(a) prepare the application and any other papers necessary to lead to the grant; and

(b) give on behalf of the applicant any notice required to be given by this or any other Act in connection with the ap plication;

and the fee payable by the applicant under the rules made under this Act shall not exceed $25.

(2) An administrator to whom a grant is made under this sec tion shall not be required to produce sureties.

Certificate in lieu of grant

21 (1) Where it appears to the Court that the estate of the de ceased consists only of personal property of an aggregate value not ex ceeding $20,000 so far as can be ascertained after reasonable inquiry, the Court may, without a grant, direct the Registrar to issue to the appli cant a certificate under this section on payment of a fee of $5.

(2) The certificate shall be in the form prescribed by the rules and shall �

(a) authorise the person to whom it is issued to make a de mand of payment or possession and to receive and give a valid receipt for the money or other personal property so received as effectively as if he had been issued a grant; and

(b) order the person to whom it is issued to dispose of the

estate by paying the reasonable funeral expenses and the debts of the deceased and by distributing the re mainder, if any, of the estate �

(i) in the case of property of which the deceased died testate, to the beneficiaries entitled thereto, or if none can conveniently be found, to the Ac countant-General to be paid into the Consoli dated Fund; and

(ii) in the case of property of which the deceased died intestate, to the persons entitled thereto.

(3) Where a balance is paid over to the Accountant-General under subsection (2)(b)(i) and any claim thereto is subsequently proved to the satisfaction of the Court, the Accountant-General, upon order of the Court, shall pay the claim out of the Consolidated Fund.

(4) The provisions of this Act or the rules made under this Act with respect to the grant of probate or administration do not apply in cases coming within this section.

Varying aggregate value in sections 20(1) and 21(1)

21A The Premier may by order which is subject to the affirmative res olution procedure vary the sums in respect of the aggregate value speci fied in sections 20(1) and 21(1).

Assimilation of real estate and personal estate

22 (1) The estate representatives shall be the representatives of a deceased person in regard to his real estate to which he was entitled to an interest not ceasing on his death as well as in regard to his personal estate; and real estate to which a deceased person was entitled for an estate or interest not ceasing on his death shall on his death, notwith standing any testamentary disposition, devolve upon and become vested in his estate representatives from time to time as if it were personal es tate vesting in them.

(2) The estate representatives for the time being of a deceased person shall be deemed in law his heirs and assigns within the meaning of all trusts and powers.

(3) The estate or interest of a deceased person in an estate in tail shall be deemed to be an estate or interest ceasing on his death.

(4) The interest of a deceased person under a joint tenancy where another tenant survives the deceased is an interest ceasing on his death.

(5) On the death of a corporation sole his estate or interest in the real and personal estate of the corporation shall be deemed to be an interest ceasing on his death and shall devolve to his successor.

(6) Without prejudice to the rights and powers of an estate rep resentative, the appointment of an estate representative in regard to real estate shall not, save as hereinafter provided, affect any rule as to mar shalling or as to administration of assets.

(7) Subject to the provisions of this Act, all statutory provisions and rules of law relating to �

(a) the effect of probate or letters of administration as re spects personal estate;

(b) the dealing with personal estate before probate or letters of administration;

(d) the payment of costs of administration; and

(e) all other matters with respect to the administration of personal estate,

shall, so far as the same are applicable, extend and apply to real estate as if it were personal estate vesting in them or him.

(8) All jurisdiction of any court with respect to the appointment of administrators or otherwise with respect to the grant of probate or letters of administration as respects personal estate shall extend over, and be exercisable in relation to, real estate as if it were personal estate.

(9) A grant shall, unless containing an express limitation to the contrary, have effect as well over the real as over the personal estate.

Trust for beneficiaries

23 Subject to this Act, the estate representatives of a deceased per son shall hold the real estate which devolves upon and becomes vested in them under section 22(1) as trustees for the persons beneficially enti tled thereto in accordance with the will of the deceased person or the law relating to intestacy, or the combination of his will and that law, and those persons shall have the same power of requiring a transfer of real estate as persons beneficially entitled to personal estate have of requiring a transfer of such personal estate.

Conveyance of real estate by estate representatives

24 Where as respects real estate there are two or more estate repre sentatives, a conveyance of real estate devolving under this Act shall not be made without the concurrence therein of all such representatives or an order of the Court, but where probate is granted to one or some of two or more persons named as executors, whether or not power is reserved to the other or others to prove, any conveyance of the real estate may be made by the proving executor or executors for the time being, without an order of the Court, and shall be as effectual as if all the persons named as executors had concurred therein.

Cesser of right of executor to prove

25 (1) Where a person appointed executor by a will �

(a) survives the testator but dies without having taken out probate of the will; or

(b) is cited to take out probate of the will and does not ap pear to the citation; or

his rights in respect of the executorship shall wholly cease, and the rep resentation to the testator and the administration of his real and per sonal estate shall devolve and be committed in like manner as if that person had not been appointed executor.

(2) Where a person appointed executor and trustee by a will files in the Registry his renunciation of probate of the will his rights in respect of the executorship and trusteeship shall wholly cease, and the representation to the testator and the administration of his real and per sonal estate and the execution of the trusts of his will shall devolve and be committed and executed in like manner as if that person had not been appointed executor and trustee.

Withdrawal of renunciation

26 (1) Where an executor who has renounced probate has been permitted, whether before, on or after 1 September 1974, to withdraw the renunciation and prove the will, the probate shall take effect and be deemed always to have taken effect without prejudice to the previous acts and dealings of and notices to any other estate representative who has previously proved the will or taken out letters of administration, and a memorandum of the subsequent probate shall be endorsed on the original probate or letters of administration.

(2) This section applies whether the testator died before, on or after 1 September 1974.

Executor of executor represents original testator

27 (1) An executor of a sole or last surviving executor of a testator is the executor of that testator:

Provided that this provision shall not apply to an executor who does not prove the will of his testator and, in the case of an executor who on his death leaves surviving him some other executor of his testator who afterwards proves the will of that testator, it shall cease to apply on such probate being granted.

(2) So long as the chain of such representation is unbroken, the last executor in the chain is the executor of every preceding testator.

(3) The chain of such representation is broken by �

(a) an intestacy; or

(b) the failure of a testator to appoint an executor; or

but is not broken by a temporary grant of administration if probate is subsequently granted.

(4) Every person in the chain of representation to a testator �

(a) has the same rights in respect of the real and personal estate of that testator as the original executor would have had if living; and

(b) is, to the extent to which the estate whether real or per sonal of that testator has come to his hands, answerable as if he were an original executor.

Right of proving executors to exercise powers

28 (1) Where probate is granted to one or some of two or more persons named as executors, whether or not power is reserved to the others or other to prove, all the powers which are by law conferred on the estate representative may be exercised by the proving executor or ex ecutors for the time being and shall be as effectual as if all the persons named as executors had concurred therein.

(2) This section applies whether the testator died before, on or after 1 September 1974.

Vesting of estate of intestate between death and grant of adminis tration

29 (1) Where a person dies without having appointed an executor or having appointed an executor whose rights in respect of the executor ship have wholly ceased, his real and personal estate, until administra tion is granted in respect thereof, shall vest in the Registrar.

Executor not to act while administration is in force

30 Where administration has been granted in respect of any real or personal estate of a deceased person, no person shall have power to act as executor of the deceased person in respect of the estate comprised in or affected by the grant until the grant has been recalled or revoked.

Continuance of legal proceedings after revocation of temporary ad ministration

31 If, while any legal proceeding is pending in the Court by or against an administrator to whom a temporary administration has been granted, that administration is revoked, the Court may order that the proceeding be continued by or against the new estate representative in like manner as if the same had been originally commenced by or against him, but subject to such conditions and variations, if any, as the Court directs.

Rights and liabilities of administrator

32 Every person to whom administration of the real and personal estate of a deceased person is granted, shall, subject to the limitations contained in the grant, have the same rights and liabilities and be ac countable in like manner as if he were the executor of the deceased.

Duty of estate representatives

33 The estate representative of a deceased person shall be under a duty �

(a) to collect and get in the real and personal estate of the deceased and administer it according to law;

(b) when required to do so by the Court, to exhibit on oath in the Court a full inventory of the estate, and, when so required, to render an account of the administration of the estate to the Court;

Protection of persons acting on probate or administration

34 (1) Every person making or permitting to be made any payment or disposition in good faith under a grant shall be indemnified and pro tected in so doing, notwithstanding any defect or circumstance whatso ever affecting the validity of the grant.

(2) Where a grant is revoked, all payments and dispositions made in good faith to an estate representative under the grant before the revocation thereof are a valid discharge to the person making the same; and the estate representative who acted under the revoked grant may hold back moneys and reimburse himself in respect of any payments or dispositions made by him which the person to whom a grant is after wards made might have properly made.

Liability of person fraudulently obtaining or retaining estate of de ceased

35 If any person, to the defrauding of creditors or without full valu able consideration, obtains, receives or holds any real or personal estate of a deceased person or effects the release of any debt or liability due to the estate of the deceased, he shall be charged as executor in his own wrong to the extent of the real and personal estate received or coming to his hands, or the debt or liability released, after deducting �

(a) any debt for valuable consideration and without fraud due to him from the deceased person at the time of his death; and

(b) any payment made by him which might properly be made by an estate representative.

Liability of estate of estate representative

36 Where a person as estate representative of a deceased person (including an executor in his own wrong) wastes or converts his own use any part of the real or personal estate of the deceased, and dies, his es tate representative shall to the extent of the available assets of the de faulter be liable and chargeable in respect of such waste or conversion in the same manner as the defaulter would have been if living.

Administration of estate falling to the Government

37 (1) Where the administration of the real and personal estate of any deceased person is granted to a nominee of the Government (whether the Attorney-General or a person nominated by the Attorney-General), any legal proceedings by or against the Attorney-General or that nominee for the recovery of the real or personal estate, or any part
or share thereof, shall be of the same character, and be instituted and carried on in the same manner, and be subject to the same rules of law and equity, (including, except as otherwise provided by this Act, the rules of limitation under the statutes of limitation or otherwise), in all respects as if the administration had been granted to the Attorney-General or such nominee as one of the persons interested in the estate of the de ceased.

(2) Proceedings on the part of the Government shall not be filed or instituted in respect of the real or personal estate of any deceased person or any part or share thereof, or any claim thereon, except subject to the same rules of law and equity and subject to which a proceeding for the like purposes might be instituted by or against a subject.

(3) The Attorney-General or such nominee shall not be re quired, when applying for or obtaining administration of the estate of a deceased person for the use or benefit of the Government, to deliver, nor shall the Court be entitled to receive in connection with any such appli cation or grant of administration, any affidavit, statutory declaration, ac count, certificate or other statement verified on oath, but the Attorney-General or such nominee shall deliver, and the Court shall accept in lieu thereof, an account or particulars of the estate of the deceased signed by or on behalf of the Attorney-General or such nominee.

Real and personal estate of deceased are assets for payment of debts

38 (1) The real and personal estate, whether legal or equitable, of a deceased person, to the extent of his beneficial interest therein, and the real and personal estate of which a deceased person in pursuance of any general power disposes by his will, are assets for payment of his debts (including stamp duties), his debts (whether by specialty or simple contract) and liabilities, and any disposition by will inconsistent with this enactment is void as against the creditors, and the Court shall, if neces sary, administer the property for the purpose of the payment of the debts and liabilities.

This subsection takes effect without prejudice to the rights of incum brancers.

(2) If any person to whom any such beneficial interest devolves, or is given, or in whom any such interest vests, disposes thereof in good faith before an action is brought or process is sued out against him, he shall be personally liable for the value of the interest so disposed of by him, but that interest shall not be liable to be taken in execution in the action or under the process.

Power of estate representative to sell

39 (1) The estate representative may, without the consent of any person, sell the assets referred to in section 38 for the purpose not only of paying debts, but also (whether there are or are not debts) of dis tributing the estate among the persons beneficially entitled thereto, and before selling for the purposes of distribution the estate representative shall, so far as practicable, give effect to the wishes of the persons of full age for the time being beneficially entitled to the property proposed to be sold, or, in the case of dispute, of the majority (according to the value of their combined interests) of such persons, but a purchaser shall not be concerned to see that this section has been complied with.

(2) Unless required for purposes of administration owing to want of other assets, personal chattels as to which a person dies intes tate shall not be sold except for special reason.

(3) Nothing in this section shall affect the operation of section 8 of the Succession Act 1974 [title 26 item 1] (which enables the surviving husband or wife of a person dying intestate on or after 1 September 1974 to acquire the matrimonial home).

Protection of bona fide purchasers

40 (1) A purchaser from the estate representatives of a deceased person of any property, being the whole or part of the estate of that de ceased person, shall be entitled to hold that property freed and dis charged from any debts or liabilities of the deceased person, except such as are charged thereon otherwise than by the will of the deceased per son, and from the claims of the persons beneficially entitled thereto, and shall not be concerned to see to the application of the purchase money.

(2) A purchaser of any property, being the whole or part of the estate of a deceased person which has been transferred by the estate representatives to the person beneficially entitled thereto, shall be enti tled to hold that property freed and discharged from the claims of the creditors of the deceased person except claims of which the purchaser had actual or constructive notice at the time of his purchase.

Abolition of rule Allhusen v. Whittell

41 (1) Unless the will contains an express direction to the con trary�

(a) the estate representative in paying the debts, funeral and testamentary expenses, legacies, or other similar disbursements, shall not apply or be deemed to have

applied any income of the estate in or towards the pay ment of any part of the capital of any such disburse ments or of any part of the interest (if any) due or ac cruing due thereon at the date of death of such person;

(b) until the payment of the debts, funeral and testamentary expenses, legacies, or other similar disbursements men tioned in paragraph (a), the income from the property required for the payment thereof, with the exception of any part of such income applied in the payment of any interest accruing due thereon after the date of death of the deceased, shall be treated and applied as income of the residuary estate, provided that, in any case where the assets of the estate are not sufficient to pay the aforesaid disbursements in full, the income shall be ap plied in making up such deficiency.

Retainer, preference and the payment of debts by estate representa tives

42 (1) The right of retainer of an estate representative and his right to prefer creditors are hereby abolished.

(2) Nevertheless an estate representative �

(a) other than one mentioned in paragraph (b), who, in good faith and at a time when he has no reason to believe that the deceased's estate is insolvent, pays the debts of any person (including himself) who is a creditor of the estate; or

(b) to whom letters of administration had been granted solely by reason of his being a creditor and who, in good faith and at such a time pays the debt of another person who is a creditor of the estate;

shall not, if it subse quently appears that the estate is insolvent, be liable to account to a creditor of the same degree as the paid creditor for the sum so paid.

(3) This section shall not apply in relation to the estates of per sons dying before 1 September 1974.

Administration of assets

43 (1) Where the estate of a deceased person is insolvent, his real and personal estate shall be administered in accordance with Part I of the First Schedule.

(2) Where the estate of a deceased person is solvent his real and personal estate shall, subject to the rules and the provisions here inafter contained as to charges on property of the deceased, and to the provisions, if any, contained in his will, be applicable towards the dis charge of the funeral, testamentary and administration expenses, debts, liabilities and pecuniary legacies payable thereout in the order men tioned in Part II of the First Schedule.

Charges on property of a deceased person to be paid primarily out of the property charged

44 (1) Where a person dies possessed of, or entitled to, or, under a general power of appointment by his will disposes of, an interest in prop erty, which at the time of his death is charged with the payment of money, whether by way of legal mortgage, equitable charge or otherwise (including a lien for unpaid purchase money), and the deceased has not by will deed or other document signified a contrary or other inten tion, the interest so charged shall, as between the different persons claiming through the deceased, be primarily liable for the payment of the charge; and every part of the said interest, according to its value, shall bear a proportionate part of the charge on the whole thereof.

(2) Such contrary or other intention shall not be deemed to be signified �

(a) by a general direction for the payment of debts or of all the debts of the testator out of his personal estate, or his residuary real and personal estate, or his residuary real estate; or

(b) by a charge of debts upon any such estate;

unless such intention is further signified by words expressly or by neces sary implication referring to all or some part of the charge.

(3) Nothing in this section affects the right of a person entitled to the charge to obtain payment or satisfaction thereof either out of the other assets of the deceased or otherwise.

Validity of conveyance not affected by revocation of grant

45 (1) All conveyances of any interest in real or personal estate made to a purchaser before, on or after 1 September 1974 by a person to whom a grant has been issued are valid, notwithstanding any subse quent revocation or variation, before, on or after 1 September 1974, of the grant.

(2) This section takes effect without prejudice to any order of the Court made before 1 September 1974, and applies whether the tes-

tator or intestate died before, on or after such date.

Right to follow property and powers of the Court in relation thereto

46 (1) A conveyance by an estate representative to a person other than a purchaser does not prejudice the rights of any person to follow the property to which the conveyance relates, or any property repre senting the same, into the hands of the person in whom it is vested by the conveyance, or of any other person (not being a purchaser) who may have received the same or in whom it may be vested.

(2) Notwithstanding any such conveyance the Court may, on the application of any creditor or other person interested�

(a) order a sale, exchange, mortgage, charge, lease, pay ment, transfer or other transaction to be carried out which the Court considers requisite for the purpose of giving effect to the rights of the persons interested;

(b) declare that the person, not being a purchaser, in whom the property is vested is a trustee for those purposes;

(c) give directions respecting the preparation and execution of any conveyance or other instrument or as to any other matter required for giving effect to the order;

(d) make any vesting order, or appoint a person to convey in accordance with the Trustee Act 1975 [title 26 item 51].

(3) This section does not prejudice the rights of a purchaser or a person deriving title under him, but applies whether the testator or in testate died before, on or after 1 September 1974.

Additional powers of estate representative

47 (1) In dealing with the real and personal estate of a deceased person an estate representative shall, for the purposes of administration, or during a minority of any beneficiary or the subsistence of any life in terest, or until the period of distribution arrives, have in addition to any other powers conferred on him by this Act, the powers conferred by the Second Schedule.

(2) This section shall not prejudice or affect any powers con ferred by will on an estate representative, and the powers conferred by this section on the estate representative of a deceased person who has died testate shall be exercised subject to any provisions contained in his will with respect to the disposal of his estate.

(3) Nothing in this section shall affect the right of any person to require a conveyance to be made.

(4) This section applies whether the testator or intestate died before, on or after 1 September 1974.

Powers of estate representative as to appropriation

48 (1) The estate representative may appropriate any part of the real or personal estate, including things in action, of the deceased person in the actual condition or state of investment thereof at the time of ap propriation in or towards satisfaction of any legacy bequeathed by the deceased person, or of any other interest or share in his property, whether settled or not, as to the estate representative may seem just and reasonable, according to the respective rights of the persons interested in the property of the deceased person:

Provided that�

(i) an appropriation shall not be made under this section so to affect prejudicially any specified devise or bequest;

(ii) an appropriation of property, whether or not being an investment authorised by law or by the will, if any, of the deceased person for the investment of money subject to the trust, shall not (save as hereinafter mentioned) be made under this section except with the following con sents �

(a) when made for the benefit of a person absolutely and beneficially entitled in possession, the con sent of that person;

(b) when made in respect of any settled legacy, share or interest, the consent of either the trustee thereof, if any (not being also the estate representative), or the person who may for the time being be entitled to the income:

If the person whose consent is so required as aforesaid is an infant or is incapable, by reason of mental disorder within the meaning of the Mental Health Act 1968 [title 11 item 36], of managing and administering his property and affairs, the consent shall be given on his behalf by his parents or parent, testamentary or other guardian or receiver, or if, in the case of an infant, there is no such parent or guardian, by the Court on
the application of his next friend;

(iii) no consent (save of such trustee as aforesaid) shall be required on behalf of a person who may come into exis tence after the time of appropriation, or who cannot be found or ascertained at that time;

(iv) if no receiver is acting for a person suffering from mental disorder, then, if the appropriation is of an investment authorised by law or by the will, if any, of the deceased person for the investment of money subject to the trust, no consent shall be required on behalf of the said per son;

(v) if, independently of the estate representative, there is no trustee of a settled legacy, share or interest, and no per son of full age and capacity entitled to the income thereof, no consent shall be required to an appropriation in respect of such legacy, share or interest, provided that the appropriation is of an investment authorised as aforesaid.

(2) Any property duly appropriated under the powers conferred by this section shall thereafter be treated as an authorised investment, and may be retained or dealt with accordingly.

(3) For the purposes of such appropriation, the estate repre sentative may ascertain and fix the value of the respective parts of the real and personal estate and the liabilities of the deceased person as he may think fit, and may for that purpose employ an independent valuer; and may make any conveyance which may be requisite for giving effect to the appropriation.

(4) An appropriation made pursuant to this section shall bind all persons interested in the property of the deceased person whose con sent is not hereby made requisite.

(5) The estate representative shall, in making the appropria tion, have regard to the rights of any person who may thereafter come into existence, or who cannot be found or ascertained at the time of ap propriation, and of any other person whose consent is not required by this section.

(6) This section does not prejudice any other power of appro priation conferred by law or by the will (if any) of the deceased person, and takes effect with any extended powers conferred by the will (if any) of the deceased person, and where an appropriation is made under this section, in respect of a settled legacy, share or interest, the property ap propriated shall remain subject to all powers of leasing, disposition, and management or varying investments which would have been applicable thereto or to the legacy, share or interest in respect of which the appro priation is made, if no such appropriation has been made.

(7) If after any real estate has been appropriated in purported exercise of the powers conferred by this section, the person to whom it was conveyed disposes of it or any interest therein, then, in favour of a purchaser, the appropriation shall be deemed to have been made in ac cordance with the requirements of this section and after all requisite consents, if any, had been given.

(8) In this section, a settled legacy, share or interest includes any legacy, share or interest to which a person is not absolutely entitled in possession at the date of the appropriation, also an annuity, and "purchaser" means a purchaser for money or money's worth.

(9) This section applies whether the deceased person died in testate or not, and whether before, on or after 1 September 1974, and extends to property over which a testator exercises a general power of appointment, and authorises the setting apart of a fund to answer an annuity by means of the income of that fund or otherwise.

Power to appoint trustees of infants property

49 (1) Where �

(a) an infant is absolutely or contingently entitled under the will or on the intestacy of a person dying before, on or after 1 September 1974 (in this subsection called "the deceased person"), to a devise or legacy, or to the residue of the estate of the deceased person, or any share therein; and

(b) such devise, legacy, residue or share is not under the will, if any, of the deceased person, devised or be queathed to trustees for the infant,

the estate representative of the deceased person may appoint a trust corporation or two or more individuals not exceeding four (whether or not including the estate representatives or one or more of the estate repre sentatives) to be the trustee or trustees of such devise, legacy, residue or share for the infant, and may execute and do any assurance or thing requisite for vesting such devise, legacy, residue or share in the trustee or trustees so appointed.

On such appointment the estate representative, as such, shall be dis charged from all further liability in respect of such devise, legacy,

residue or share, and the same may be retained in its existing condition or state of investment, or may be converted into money, and such money may be invested in any manner authorised by the Trustee Act 1975 [title 26 item 51].

(2) Where an estate representative has before 1 September 1974 retained or sold any such devise, legacy, residue or share, and in vested the same or the proceeds thereof in any investments in which he was authorised to invest money subject to the trust, then, subject to any order of the Court made before such date, he shall not be deemed to have incurred any liability on that account, or by reason of not having paid or transferred the money or property into Court.

Discretionary power of estate representative as to giving possession of land and powers of the Court

50 (1) An estate representative, before making a conveyance in favour of any person entitled, may permit that person to take possession of the land, and such possession shall not prejudicially affect the right of the estate representative to take or resume possession nor his power to convey the land as if he were in possession thereof, but subject to the interest of any lessee, tenant or occupier in possession or in actual oc cupation of land.

(2) Any person who as against the estate representative claims possession of real estate, or the appointment of a receiver thereof, or a conveyance thereof, may apply to the Court for directions with reference thereto, and the Court may make such vesting or other order as may be deemed proper, and the provisions of the Trustee Act 1975 [title 26 item 51], relating to vesting orders and to the appointment of a person to con vey, shall apply.

(3) This section applies whether the testator or intestate died before, on or after 1 September 1974.

Power to postpone distribution

51 Subject to the foregoing provisions of this Act, an estate repre sentative is not bound to distribute the estate of the deceased before the expiration of one year from the death or six months from the date on which representation in regard to the estate of the deceased is first taken out, whichever is later.

52 [repealed by 1975:2]

53 (1) Before making any conveyance to or distribution among the persons entitled to the estate of the deceased, the estate representative may give notice by advertisement published three times at intervals of not less than one week in a newspaper for the time being approved as the Gazette, requiring all persons having claims against the estate of the deceased to send particulars thereof to the estate representative within the time, not being less than one month from publication of the last of the notices, fixed in the notice.

(2) At the expiration of the time fixed by the notice the estate representative may convey or distribute the real and personal estate of the deceased, or any part thereof, to or among the persons entitled thereto, having regard only to the claims, whether formal or not, of which the estate representative then has notice and shall not, as respects the property so conveyed or distributed, be liable to any person of whose claim the estate representative has not had notice at the time of con veyance or distribution.

(3) Nothing in this section prejudices the right of any person to follow the property, or any property representing the same, into the hands of any person other than a purchaser, who may have received it.

(4) Every creditor or other person filing a claim against the es tate of a deceased person shall, if required to do so by the estate repre sentative, verify his claim by affidavit showing full particulars of his claim.

(5) This section applies notwithstanding anything to the con trary in the will.

Places for deposit of wills

54 All original wills and other documents which are under the con trol of the Court shall be deposited and preserved in such places as the Chief Justice may direct, and any wills and other documents so de posited shall, subject to the control of the Court and the rules, and sub ject to the payment of the fees required by law, be open to inspection.

Official copies of wills

55 An official copy of the whole or any part of a will or an official certificate of any grant of administration may, on payment of the fee re quired by law, be obtained from the Registrar.

Application of Act

56 Save as otherwise expressly provided, this Act does not apply in any case where the death occurred before 1 September 1974.

Rules

57 (1) The Chief Justice may make rules in relation to any matter

or thing required or permitted to be prescribed by rules under this Act and generally for the better administration and carrying out of this Act:

(2) The affirmative resolution procedure shall apply to rules made for the purpose of entitling a corporation to act as a trust corpora tion.

(3) Section 6 of the Statutory Instruments Act 1977 [title 1 item 3] shall not apply to rules made under this section, other than those to which subsection (2) applies.

58 [repealed by 1975:2]

Repeals

59 [omitted]

Amendment of the Trustee Act 1936

60 [repealed by 1975:2]

Non-application of certain English statutes enacted before July 11, 1612

61 (1) The provisions of this Act shall prevail over the provisions of any enactment of the Parliament of England passed before July 11, 1612, which apply to Bermuda and are inconsistent with the provisions of this Act.

(2) This section shall not apply in relation to the estates of per sons dying before 1 September 1974.

Commencement

62 [omitted]

[this Act was brought into operation on 1 September 1974]

FIRST SCHEDULE (Section 43)

PART I
RULES AS TO PAYMENT OF DEBTS WHERE THE ESTATE IS INSOL VENT

1 The funeral, testamentary, and administration expenses have priority.

2 Subject as aforesaid, the same rules shall prevail and be ob served as to the respective rights of secured and unsecured creditors and as to debts and liabilities provable and as to the valuation of annuities and future and contingent liabilities respectively, and as to the priorities of debts and liabilities as may be in force for the time being under the law of bankruptcy with respect to the assets of persons adjudged bankrupt.

PART II
ORDER OF APPLICATION OF ASSETS WHERE THE ESTATE IS SOL VENT

1 Property of the deceased person undisposed of by will, subject to the retention thereout of a fund sufficient to meet any pecuniary lega cies.

2 Property of the deceased person specifically appropriated or de vised or bequeathed (either by a specific or general description) for the payment of debts.

3 Property of the deceased person charged with, or devised or be queathed (either by a specific or general description) subject to a charge for the payment of debts.

4 Property of the deceased person not specifically devised or be queathed but included (either by a specific or general description) in a residuary gift, subject to the retention out of such property of a fund sufficient to meet any pecuniary legacies, so far as not provided for as aforesaid.

5 The fund, if any, retained to meet pecuniary legacies.

6 Property specifically devised or bequeathed, rateably according to value.

7 Property appointed by will under a general power, rateably ac cording to value.

SECOND SCHEDULE (Section 47)

ADDITIONAL POWERS OF ESTATE REPRESENTATIVE

1-8 [repealed by 1975:2]

9 Power to make leases.

An estate representative of a deceased person may make such leases of land forming part of the estate of such person as may be reasonably nec essary for the due administration of the estate.

Bermuda Consolidated Legislation

Administration of Estates Act 1974