Q&As

A client has paid the liabilities of an estate themselves to prevent the deceased's property being sold. The property will be transferred into the names of client and three others as executors. The client is to secure their interest in the debt by way of a restriction/charge against the property. Can the client charge interest on the lump sum until the date of payment?

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Published on LexisPSL on 05/03/2021

The following Wills & Probate Q&A provides comprehensive and up to date legal information covering:

  • A client has paid the liabilities of an estate themselves to prevent the deceased's property being sold. The property will be transferred into the names of client and three others as executors. The client is to secure their interest in the debt by way of a restriction/charge against the property. Can the client charge interest on the lump sum until the date of payment?

Personal representatives have the same statutory powers given to trustees in the Trustee Act 2000 (TrA 2000), by virtue of TrA 2000, s 35. Trustees and personal representatives do not generally have the power to borrow.

However, where there is a trust of land, the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA 1996) gives the trustees additional powers. TOLATA 1996, s 6(1) gives trustees of land all the powers of an absolute owner in relation to the land. Trustees of land therefore have a power to mortgage land to secure liabilities incurred by them. TOLATA 1996, s 18 extends the scope of TOLATA 1996, s 6 (and other specified provisions of TOLATA 1996) to personal representatives.

See Practice Note: Personal representatives—powers, duties and remuneration.

Neither TrA 2000 nor TOLATA 1996 give trustees or personal representatives a power to borrow. Arguably, a power to mortgage land implicitly includes a power to borrow, so long as the borrowing is secured

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