PT-2024-000461 - [2025] EWHC 2285 (Ch)

Chapter 72 of Williams Mortimer and Sunnucks on Executors, Administrators and Probate 22^nd Edition (“WMS”) introduces its chapter on assents:

“An assent has been described as an acknowledgment by a personal representative that an asset is no longer required for the payment of the debts, funeral expenses or general pecuniary legacies.”

An assent is therefore a confirmation that the asset is not needed to meet liabilities.

An assent of a legal interest rather than beneficial interest must be in writing: see s.36 (4) Administration of Estates Act 1925. An assent of a beneficial interest “even a beneficial interest in land” has no prescribed form nor does it need to be in writing. Such an assent need not be express but can be implied. Whether it can be implied will depend on the particular facts.

WMS at 72.10 explains:

“The operation of the assent was not to convey the property to the devisee, but to perfect an interest which until then had been inchoate. For this reason a devisee cannot claim any description beyond that contained in the will.… An assent of realty, as in the case of personalty, might have been either express or implied.”

Mr Adams argued that the prospective trustees did not have a sufficient proprietary interest to invoke the court’s jurisdiction to call for an assent of the deceased’s share in the Property or the Cash Sum. However, the basis for his submissions was that the defendants were the prospective trustees and not the Rutland Trustees. I have found them to be the Rutland Trustees for the reasons set out above.

Re Neeld does not therefore assist the claimants. The Rutland Trustees stand in the same position as any party entitled in equity to call for an assent of the assets devised to the trust under the terms of the will trust - in this case the half share in the Property and the Cash Sum.

In Clowes v Hilliard (1876) 4 Ch D 413 the claimants sought to advance their entitlement to benefit from the will of the deceased. The will provided that if the deceased’s daughters died without issue his estate would pass to those who would have been his next of kin otherwise on an intestacy. The will appears to have left the deceased’s estate on trust to his daughters with a default trust to what the MR described as “collateral relations”.

The oddity of the case was that the daughters were very much alive and the judgment records that one of them was about to be married. The MR concluded that in those circumstances the court simply could not predict if any one of those persons who had issued the claim would be a member of the class entitled under the default provisions if the default provisions took effect. They could not be ascertained now. Their interest was described as no more than an expectation of a future interest with no current vested or contingent interest. It appeared to me to be an entirely opportunistic application.

That seems to me to be entirely different to the position here. Had these claimants sought to accelerate their entitlement to the share in the Property or the Cash Sum prior to Vicki’s death on some basis they would have been in a similar position to the collateral relations. Their interest did not crystallise until Vicki died.

Mr Adams accepted that in the course of the administration there may come a point at which a beneficiary has a sufficient interest to become entitled in equity to call for an assent. The executors would then have to consider in the reasonable management of the estate whether to assent the relevant property. Any dispute at that stage might be sufficient to enable the beneficiary to invoke the court’s supervisory jurisdiction to obtain a direction for an assent. He submitted that it was only at that stage that the beneficiary obtained any proprietary interest in the relevant property.

I am satisfied that the Rutland Trustees would have had a sufficient interest to call for an assent and/or to apply to the court for directions – see Re Neeld. Had they done so the court would have considered the application on its own merits at the time. The defendants say they did not because of the poor relationship between the claimants and Vicki and the defendants.

By the time of Vicki’s death there had been no express assent in writing of the deceased’s share in the Property to the Rutland Trust. Although the Rutland Trustees had called for the Cash Sum it too had not been assented or paid across to the Rutland Trustees. But the absence of an express assent in writing is not an end of the matter.

In Re Edwards [1982] Ch 30 the issue that arose concerned whether the property in issue had been the subject of the deceased’s will trusts and whether there could be an implied assent of property in the hands of trustees. Buckley LJ at 40B to 40F:

“I propose to deal next with the question whether the property…has ever been subjected to the trusts of the testator’s will. The argument presented by Mr. Etherton for the defendant has been that, since [Mr. Edwards] as administrator of his wife's estate never made any written assent in respect of the property or any part of it in his own favour as the sole beneficiary entitled to it, the legal estate was at his death vested in him as such administrator and so did not pass to his executors but remained an unadministered asset of Mrs. Edwards' estate. He relied upon re King's Will Trusts [[1964] Ch 542]. I proceed on the basis that this is correct. It does not follow that the equitable beneficial interest in the property did not vest in [Mr. Edwards] in his lifetime so as to form part of his estate at his death (see re Hodge , [[1940] Ch 260 at 264]. [Mr. Edwards] enjoyed the beneficial occupation of the property for nearly 20 years after Mrs. Edwards' death. Nothing in the evidence suggests that during the greater part of that period any liabilities of Mrs. Edwards' estate remained outstanding.

It is evident that when the plaintiff and the defendant executed the assent of 25th April 1950 they regarded the property as having vested beneficially in [Mr. Edwards]. They were clearly not aware that the legal estate might have then been outstanding. The assent may have been ineffective to vest the legal estate, but this does not deprive it of significance as evidence of the executors' views as to where the beneficial interest was when [Mr. Edwards] died. An assent to the vesting of an equitable interest need not be in writing. It may be inferred from conduct. In my judgment there are ample grounds for inferring that [Mr. Edwards] assented in his lifetime to the vesting in himself of the full beneficial interest in the property. If so, that beneficial interest passed to his executors upon his death and became subject to the trusts of his will. For these reasons I am of the opinion that the property is subject to the trusts of [Mr. Edwards'] will.

In Re Hodge [1940] Ch 260 at 264,Farewell J said:

“It is said in the first instance that here the property can never have vested in the plaintiff as beneficiary or devisee because there had been no written assent and that under the Administration of Estates Act, 1925, s. 36, sub-s. 4 such an assent is necessary. In my judgment that is not the true view. No doubt under the Act if a vendor is selling as beneficial owner taking under a will, the purchaser is entitled to require a written assent in order that he may be satisfied as to the title; and the Act gives him the right to demand it, but in a case of this sort the position is not the same. The legal estate in the property is vested in the plaintiff as legal personal representative and there is therefore no difficulty with regard to that. His equitable interest as devisee depends upon equities and upon whether or not he has done acts which must be treated as amounting to sufficient evidence of assent so as to make it impossible for him now to say that he has never accepted this gift.”

WMS at 72.14 addresses this issue further:

“While it is clearly desirable for a representative, who is entitled beneficially or as trustee, to make an assent in his own favour after completion of administration, the view was taken that despite the provisions of s.36(4) of the Administration of Estates Act 1925 requiring an assent in writing to effectuate the passing of the legal estate, a written assent was not strictly necessary as there was no passing of the legal estate but merely a change in the character in which it was held. [Re Hodge, Hodge v Griffiths [1940] Ch. 260] This view has been held incorrect, but in a decision where the relevant authorities were not all cited.[Re King’s Will Trusts, Assheton v Boyne [1964] Ch. 542] In future a representative will never safely be able to terminate his character of representative in his own favour otherwise than by a written assent and if the chain of representation has been broken without assent being made, it will be necessary, although the administration is at an end, to obtain a grant of administration of unadministered assets (de bonis non) to put the title in order. While this is the only safe view to take, its correctness must be doubted in the light of [ Re Hodge, Hodge v Griffiths and Re Edwards and para.72-10].”

The defendants submitted even if Re King’s was correct, and that is doubted by WMS in light of Re Edwards and Re Hodge, Re King’s only sets out the position in relation to the legal title not the beneficial title.

Vicki was an executor but also the original Rutland Trustee. She was the person who was to benefit from the life interest trust created by Clause 9 and 10 of the deceased’s will. The purpose of the Rutland Trust was to provide for Vicki so that she could continue to live in the Property until her death. It provided not only a life interest in the deceased’s half share in the Property but the income derived from the Cash Sum.

The defendants say that in the events that have occurred there had been an implied assent of the beneficial interest in the deceased’s share in the Property.

The claimants’ position is of course tied into their primary case which is that the defendants are not Rutland Trustees and there was no Rutland Trust. Consequently their position in relation to the assent issue was that the defendants never had a right to call for an assent and now that Vicki is dead never will have. Mr Adams maintained that Vicki would not have been able to unilaterally transfer or assent the share in the Property to the defendants.

Whilst it appears that the estate may not have been fully administered for which the claimants, at least in part, blame Vicki, it does not appear that the assent of the share in the Property or the Cash Sum were likely to impede the administration of the estate or be required for the administration of the estate. Neither asset appears to have been needed to meet any liabilities of the estate.

Throughout the period of nearly 22 years following the death of the deceased Vicki lived in the Property rent free, both the half in which she had a life interest under the Rutland Trust and the half which fell into her estate. Just like in Re Edwards Vicki had enjoyed uninterrupted beneficial occupation of the Property for over 20 years after the deceased’s death. Whilst possession of itself would not be sufficient to change the character in which the Property was held it forms part of the background and conduct relevant to considering whether an implied assent had taken place.

The defendants submit that at the very least the claimants have acquiesced in Vicki’s continued occupation rent free. The claimants complained that the Property was not maintained by Vicki relying on Vicki’s obligations under the Rutland Trust to maintain the Property. This appeared to me to be more consistent with a recognition of the existence of the Rutland Trust but also that an implied assent had occurred. The claimants do not seem to have taken any steps to address these maintenance concerns as executors, again more consistent with the existence of the Rutland Trust and an implied assent. They have not sought to evict her nor have they demanded rent.

Although the claimants have consistently denied the existence of the Rutland Trust they have nonetheless referred to Vicki as the life tenant and appear to have acknowledged her as such. They have not themselves taken on management or control of the Property. They have acted consistently with the terms of the Rutland Trust at least in relation to Vicki’s occupation and consistent with it being held in the Rutland Trust for her benefit. Vicki’s only interest in the share in the Property under the will of the deceased derived from the clauses that created the Rutland Trust – her life interest.

As set out above in 2016 the claimants proposed that the Cash Sum be ring fenced and that Vicki receive the interest on that sum whilst the claimants would receive the balance of the sums in the relevant account. If they were in a position to partially distribute to themselves as well as ring fence the Cash for Vicki (whilst seeking to avoid passing it to the Rutland Trust which they would not recognise) it seems tolerably clear that by at least 2016 there were no liabilities of the deceased’s estate that would have prevented the assent of the Cash Sum.

In respect of the Cash Sum JSH blames Vicki for the estate not being in a position to set up a trust of income which not only acknowledges the need to do so but the ability to do so. It is clear from the evidence that the claimants considered there was some advantage in being able, as they believed, to maintain that the Rutland Trust did not exist. Whatever that advantage was considered to be they appear to have recognised that Vicki was entitled to an income trust related to the Cash Sum and recognised that Vicki was a life tenant without making any concession as to the existence of the Rutland Trust.

As set out above it appears that the estate remains in good financial health, in 2022 the estate bank account held over £500,000.

For the purposes of any implied assent (or indeed any assent) there was no difficulty in identifying the assets and no real risk to the estate in assenting them. As explained above an assent is a confirmation or acknowledgment that an asset is no longer required to meet the liabilities of the estate.

It seems entirely clear from the conduct of the claimants in relation to the administration of the estate that neither the share in the Property nor the Cash Sum were required for the general administration of the estate or to meet any liabilities.

As set out above, following the deceased’s death negotiations took place between the claimants and Vicki with a view to varying the will. The negotiations involved consideration of a sale of the Property or a purchase of the deceased’s share by Vicki. They did not result in the variation of the will. The negotiations continued and it was not until some time in 2007 that they appear to have come to an end. Whether or not those negotiations may be considered to be inconsistent with an implied assent of the beneficial interest to the Rutland Trust at that time, the position changed by at least 2007/2008.

The Transfer took place in 2007 followed by the DOA and DOT in January 2008. Vicki was both the sole legal proprietor of the Property, an executor and the remaining Rutland Trustee when these events took place.

It is said by Mr Adams that Vicki could not undertake a unilateral act that would amount to a change in character causing the share in the Property to be impliedly assented to the Rutland Trust but this was at least in part because he maintained that she was only a prospective trustee. He submitted that none of the surrounding evidence such as her occupation rent free had any relevance at all. I do not agree.

The defendants submit that the Transfer, DOT and DOA would have been sufficient for an express assent of the legal title since the title was in fact transferred to the Rutland Trustees. But that in any event the combined effect of the conduct of the parties including the claimants, and the execution of the Transfer, DOA and DOT was such as to change the character in which Vicki held her interest in the share of the Property to that of Rutland Trustee and impliedly assent it to be held in the Rutland Trust by the Rutland Trustees for her benefit as life tenant under the terms of the will (see Re Hodge and Re Edwards).

That is further reinforced in that although the claimants denied that Vicki and the defendants were the Rutland Trustees there is no evidence that they took any action in relation to the Property which was inconsistent with the implied assent the defendants contend for either before or after January 2008 until after Vicki’s death.

The defendants say that putting all of these factors together there is sufficient in the circumstances of this case for the court to infer that there was an implied assent.

I agree with that analysis. I am satisfied that in the events that occurred there were ample grounds for inferring that the deceased’s share in the Property was impliedly assented to the Rutland Trust by no later than 17 January 2008. The subsequent conduct of the claimants, Vicki and the defendants in relation to the deceased’s share in the Property is consistent only with that implied assent having taken place. The claimants’ assertion in correspondence that the defendants are not Rutland Trustees after 2008 does not affect that inference.

The position in relation to the Cash Sum is different and the parties’ submissions and evidence did not fully address the question of whether or how there was or could have been an implied assent of the Cash Sum particularly given that it was retained by the claimants throughout. I do not consider I am yet in a position to make any final determination about whether the Cash Sum can be said to have been impliedly assented to the Rutland Trustees/Rutland Trust.

In the events that have occurred the legal title to the Property is held by the defendants under the Property Trust to distinguish it from the Rutland Trust. The Property Trust therefore holds the legal title to the entire Property rather than just the deceased’s share. The question of to whom it should be transferred if the defendants retire, as they wish to, will need to be considered by the parties and with Mr Bradshaw.