Chapter 13

GRANTS ‘DE BONIS NON’ – CESSATE

GRANTS – DOUBLE PROBATE

Grants ‘de bonis non’ 561

Administration (with will) ‘de bonis non’ 563
Administration ‘de bonis non’ 566
Particular cases 568
Practice in grants ‘de bonis non’ 571
Cessate grants 573
Double probate 579

Note: In anticipation of the revision of the Non-Contentious Probate Rules the

expression ‘witness statement’ where it is used in this work refers to the form
of application or evidence required with reference to any rule in force at the
time of the application.

GRANTS ‘DE BONIS NON’

When required

13.01 If the person or last surviving person to whom a grant of representation

has been made has died leaving part of the estate of the deceased unadminis-
tered then, unless there is an executor who has power reserved or a chain of
executorship (as to which, see paras 13.04–13.06), a grant in respect of the
unadministered estate may be made to a new personal representative to enable
the administration to be completed. Such grants of unadministered estate are
commonly referred to as de bonis non administratis (literally: of the goods not
administered) or the shortened de bonis non.
13.02 Where a grant of probate has been made, reserving power to one or
more other executors, the latter may at any time obtain double probate.
13.03 As to application for the appointment of an additional personal
representative during the subsistence of a life or minority interest where there
is only one surviving personal representative, see paras 7.40–7.47.

Chain of executorship

13.04 The probate of the will of an executor maintains, by chain, the

representation to the estate of the original testator. An executor who has
proved his testator’s will is also the executor of a will proved by his executor
and of which he was the sole or last surviving executor named in the grant of
probate. This rule applies, so long as the chain continues, to an indefinite
succession of testators (see para 4.68). As to the circumstances in which a
chain of executorship is broken, see para 4.80.

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13.05 Grants ‘de bonis non’ – Cessate grants – Double probate

13.05 A grant de bonis non cannot issue while there is already a personal
representative of the deceased by chain of executorship.
13.06 As to the position where the chain is in abeyance, see para 4.87.

Choice of new grantee: general principles

13.07 The rules of priority in relation to original grants (NCPR SI 1987/2024

rr 20 and 22: see paras 5.04 and 6.94 ff) apply equally in the case of second
or subsequent grants in the same estate, whether of administration (with will)
or of administration.
13.08 The principles may be summarised as follows:
(1) A grant de bonis non may be made to any person who had a title to a
grant equal to that of the previous grantee.
(2) If the deceased grantee was the only person taking a beneficial interest
in the residuary estate of the deceased (eg the only person entitled to the
estate on an intestacy, or the sole residuary legatee and devisee named
in a will), a grant de bonis non will be made to his personal
representative.
(2) This may necessitate application for a ‘leading grant’ in the estate of the
deceased grantee prior to the application for the grant de bonis non.
(3) On an intestacy (total or partial), where the deceased left a surviving
spouse or civil partner, special considerations apply in view of the
nature of the interest of the spouse or civil partner in the residuary
estate.
(4) The general rule under which a living person is preferred (except by
direction of a district judge or registrar) to the personal representative
of a deceased person who had an equal title to a grant1 applies.
1
NCPR SI 1987/2024 r 27(5).

13.09 These principles are dealt with in greater detail in the subsequent pages
of this chapter.

Life or minority interests

13.10 It should be noted that if any life or minority interest subsists at the time
of the application for a grant de bonis non, the grant must normally be made
to not less than two individuals, or to a trust corporation with or without an
individual1.
1
Senior Courts Act 1981, s 114(2).

Grantee’s title. Chancery Court construction

13.11 Where a probate registry has construed a will for the purpose of
ascertaining the person who shall be the grantee, and a grant has been made
to such person, but subsequently the will is before the Chancery Court for
construction, and the finding of that Court differs, the probate registry will

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 Administration (with will) ‘de bonis non’ 13.16

adopt the finding of the Chancery Court and act on it. When an original grant
of administration (with will) was made to a next-of-kin of a testator on the
basis that he had not disposed of his residuary estate, on the death of the
grantee administration (with will) de bonis non was granted to the person who
the Court of Chancery had in the meantime decided was a residuary legatee1.
1
Warren v Kelson (1859) 1 Sw & Tr 290.

ADMINISTRATION (WITH WILL) ‘DE BONIS NON’

13.12 Before a grant of administration (with will) de bonis non can be made,
it must be established that there is no chain of executorship (see paras
13.04–13.06), and all executors named in the will of the deceased must be
cleared off (including any to whom power was reserved), ie by reciting their
death or renunciation1. The renunciation of probate which an executor made
previously remains effective2. The manner in which the chain of representation
is broken must be shown in the oath (eg by stating that the sole executor, or
the survivor of the proving executors, died intestate, or having made a will but
not appointing any executor, or as the case may be).
1
As to citing an executor to whom power was reserved so as to extinguish his rights, see para
24.16.
2
See para 15.02 but note footnote to para 13.13.

13.13 Where the previous grant was one of probate, administration (with
will) may be granted to the person next in order of priority under NCPR SI
1987/2024 r 20, ie:
(a) any residuary legatee or devisee holding in trust1 for any other person;
or if cleared off;
(b) any other residuary legatee or devisee including one for life, or where
the residuary estate was not wholly disposed of by the will, any person
entitled to or sharing in the undisposed-of estate;
and on clearing off all members of the above classes, to the lower classes under
r 20, in order of priority.
1
An executor who has previously renounced only his right to probate does not thereby lose any
right to administration (with will) as residuary legatee and devisee in trust, or in any other
capacity, unless he also renounces such right (NCPR SI 1987/2024 r 37(1)).

13.14 See also Chapter 7 as to life or minority interests.

13.15 Where the former grant was of administration (with will), the order of
priority is the same. If the previous grantee was one of the residuary legatees
and devisees, a grant de bonis non may be made to another residuary legatee
or devisee; if he was the sole residuary legatee and devisee, the grant should be
taken by his personal representative, in accordance with the practice given in
paras 5.149 ff.
13.16 The practice in cases where the estate was not wholly disposed of by the
will also corresponds to that in connection with a first grant (see paras 5.110
ff).

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13.17 Grants ‘de bonis non’ – Cessate grants – Double probate

13.17 On clearing off all persons taking an interest in the residuary estate,
including the personal representatives of those who have since died, a grant de
bonis non may be made to a specific legatee or devisee or a creditor of the
deceased. If there be no legatees or devisees or creditors, or if they or their
personal representatives have renounced, then a grant de bonis non will be
made, without preference, to contingent legatees or devisees. (See NCPR SI
1987/2024 r 20.)
13.18 If the original grant was made to a creditor or a legatee on the
renunciation of the residuary beneficiaries, any other creditor or legatee may
take administration (with will) de bonis non, without any further renunciation
on the part of the residuary legatees or devisees; but if they were cited to accept
or refuse a grant and did not appear, they would have to be cited again. Their
rights are not finally extinguished by the citation as in the case of an executor
who does not appear to a citation1.
1
See Administration of Estates Act 1925, s 5 (para A1.93).

13.19 A grant de bonis non may be made to the personal representative of a

deceased residuary legatee and devisee who renounced when the original grant
was made, or who was cited to accept or refuse a grant and did not appear.

Living interests preferred

13.20 Attention is drawn to NCPR SI 1987/2024 r 20(d), under which the

personal representative of a residuary legatee or devisee (but not one for life or
one holding in trust for any other person) or of any person entitled to share in
any residue not disposed of by the will, now has a lower right of priority to a
grant than the deceased he represents. A personal representative of a residuary
legatee and devisee for life or of a residuary legatee and devisee holding in trust
for any other person has no title to a grant of the unadministered estate. The
right to a grant of such residuary legatee and devisee ceases on his death and
does not transfer to his estate.
13.21 Where the will appointed several residuary legatees and devisees, one or
some of whom are still alive, but there is some difficulty in making a grant to
a living residuary legatee and devisee, or in obtaining the renunciation of those
who are alive, those living must be cited to accept or refuse a grant or an
application must be made for an order under s 116 of the Senior Courts Act
1981 by-passing their right to a grant, at the probate registry at which the
application for the grant is to be made.

Grant to personal representative of beneficiary

13.22 Where the death occurred on or after 1 January 1926, administration

(with the will annexed) de bonis non will not be granted to the personal
representative of a child or other beneficiary in whom any property undisposed
of by the will of the deceased vested on the statutory trusts, unless such
beneficiary attained an absolutely vested interest in the estate by attaining the
age of majority or marrying under that age (see Administration of Estates Act

248
 Administration (with will) ‘de bonis non’ 13.28

1925, s 47(2) and (3)1).

1
See para A1.121.

13.23 Where the first grant of administration in the estate of A has been made
to the administrator of the estate of a deceased residuary legatee, and such
administrator dies, a further grant of representation in the estate of the
residuary legatee is necessary in order to enable the new representative
administrator to take a grant to the unadministered estate of the original
deceased A.

Codicil proved for the first time

13.24 In ordinary cases the grant of administration (with the will annexed) de
bonis non includes only the testamentary papers of which probate was
originally granted. But if a codicil is discovered at the time of application for
the grant de bonis non, the grant will include the will already proved, and the
codicil subsequently found1. If the codicil appoints different executors, or if it
contains a variation of executors, the former grant must be revoked.
1
Re Adamson (1827) July.

13.25 For forms of oath, see Nos 182 ff (A6.187 ff).

Orders for provision from estate of deceased

13.26 Section 19 of the Inheritance (Provision for Family and Dependants)

Act 19751 provides that where an order is made under the Act, then, for all
purposes, including the purposes of the enactments relating to inheritance or
formerly capital transfer tax, the will or the law relating to intestacy, or both,
as the case may be, shall have effect, and shall be deemed to have had effect as
from the death of the deceased, subject to the provisions of the order. A
memorandum of every order made under the Act (other than an order made
under s 15(1)) must be endorsed on, or permanently annexed to, the grant of
probate or administration (see paras 16.51 ff).
1
See para A1.259. The Act of 1975 applies in relation to deaths on or after 1 April 1976; for
deaths prior to that date similar provision is contained in s 3 of the Inheritance (Family
Provision) Act 1938, as amended, which also applies in relation to orders made under ss 26–28
of the Matrimonial Causes Act 1965.

13.27 Accordingly, upon an application for a second or subsequent grant, in

a case where an order under the Act1 has been made, the memorandum of the
order annexed to, and the notation relating to it must form part of any second
or subsequent grant.
1
Or, in respect of a death occurring before 1 April 1976, an order made under the Inheritance
(Family Provision) Act 1938, as amended, or under ss 26–28 of the Matrimonial Causes Act
1965, including an order dismissing an application.

13.28 Where there is a will an office copy is obtained, which must include a
memorandum of the order made under the Act, for marking by the applicant

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13.28 Grants ‘de bonis non’ – Cessate grants – Double probate

and the commissioner for oaths. A copy of both the will and the memorandum
will be annexed to the new grant. A notation of the memorandum is made in
the margin of the second or subsequent grant in the same form as in the
original grant.
13.29 If the alternative procedure of marking the original will, or marking the
copy annexed to the original grant, is adopted, the copy memorandum must be
included in every case1.
1
Registrar’s Direction (1950) 19 June.

13.30 An office copy of the will and memorandum may be obtained from any
registry (see Chapter 21 post).
13.31 As to applications generally under the Inheritance (Provision for Family
and Dependants) Act 1975, see Chapter 41.

ADMINISTRATION ‘DE BONIS NON’

Administration ‘de bonis non’

13.32 When an administrator dies, leaving part of his deceased’s estate

unadministered, if the whole estate vested beneficially in the administrator, the
grant de bonis non must be made to his personal representative1. If no personal
representative has been appointed, one must be constituted for this purpose.
1
NCPR SI 1987/2024 r 22(4).

13.33 But if there are other persons beneficially entitled in the same degree
who are still alive, they are entitled to the grant in preference to the personal
representative of the deceased administrator, unless otherwise directed by a
district judge or registrar1.
1
NCPR SI 1987/2024 r 27(5).

13.34 Forms of oath for administration de bonis non, Nos 178 ff (A6.183 ff).

Entitlement to grant where spouse or civil partner survived

13.35 When deciding by whom application for a grant de bonis non should be
made, regard must be had to the beneficial entitlement to the estate, for, by
NCPR SI 1987/2024 r 22, priority of right to a grant is given to persons taking
a beneficial interest. In particular, where the intestate was survived by a spouse
or a civil partner who has subsequently died, it is necessary to determine
whether the grant should be taken by the personal representative of the spouse
or of the civil partner, or by the issue or other kin of the intestate.
13.36 Under NCPR SI 1987/2024 r 22(4), any living kin taking a beneficial
interest in the estate are to be preferred to the personal representative of a
spouse or a civil partner who has died without taking a beneficial interest in the
whole estate as ascertained at the time of the application for the grant1. Thus,
the personal representative of the spouse or of the civil partner is entitled to the
grant in priority to all other persons either:

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 Administration ‘de bonis non’ 13.40

(a) if the amount of the residuary estate (other than the personal chattels)
is such that the whole accrues to the spouse or the civil partner in or
towards satisfaction of his or her charge, under s 46(1) of the
Administration of Estates Act 1925 of £250,000 or £450,000 (plus
interest) according to the circumstances (see para 6.48); or
(b) if the intestate left no kin within the classes which may share with the
spouse or civil partner in the residuary estate (see tables in para 6.33).
1
Where the deceased died on or after 1 February 2009. See para 6.33 for relevant figures in
respect of earlier dates of death.

13.37 If the amount of the residuary estate (other than the personal chattels)
is more than sufficient to satisfy the statutory charge, any living person within
the classes taking a beneficial interest is preferred to the personal representative
of the spouse or civil partner on an application for a grant (see NCPR SI
1987/2024 r 22(4)).

Changes in valuation

13.38 Strictly, the question whether the spouse’s or civil partner’s statutory
charge absorbs the whole known distributable estate (other than personal
chattels) is determined by reference to the values prevailing not at the death of
the intestate but at the time of payment or appropriation. The earlier values are
normally accepted in the probate registries on the footing that any significant
change is unlikely, but a substantial change in the value of an asset may change
the answer to the question, with appropriate consequences on the application
for the grant.
13.39 In cases of doubt, the practitioner may be asked to submit a note
showing the basis on which it is claimed that the spouse or civil partner was
(or was not) entitled to the whole of the known estate1.
1
Secretary’s Circular, 9 January 1962.

Death of spouse or civil partner and all other persons sharing

13.40 Where the surviving spouse or civil partner and all other kin entitled to
share in the estate have died, the personal representative of the spouse or civil
partner is, by virtue of NCPR SI 1987/2024 r 22(4), entitled to a grant de bonis
non in priority to the personal representatives of the other kin1. But if it is
sworn that the spouse’s or civil partner’s beneficial interest in the estate has
been entirely satisfied, administration de bonis non may be granted to the
personal representative of one of the other kin without clearing off the
spouse’s or civil partner’s personal representative2.
1
Registrar’s Direction (1955) 7 November.
2
Registrar’s Direction (1971) 15 November.

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13.41 Grants ‘de bonis non’ – Cessate grants – Double probate

To representative of child etc

13.41 Where the death occurred after 1925, administration de bonis non will
not be granted to the personal representative of a child or other beneficiary in
whom the estate vested on the statutory trusts arising under the intestacy of the
deceased, unless such beneficiary attained an absolutely vested interest in the
estate by attaining the age of majority or marrying under that age (Adminis-
tration of Estates Act 1925, s 47(2) and (3)1); otherwise the grant will be made
to the person becoming entitled to the estate2.
1
See para A1.121.
2
Re Peacock (1937) 12 March.

When heir-at-law died after 1925, an infant

13.42 Section 51(3) of the Administration of Estates Act 19251 (unmarried
infant dying after 1925 and being entitled to a vested interest in freehold land
deemed to have an entailed interest) applies to notional settlements arising
under intestacies, as well as to actual dispositions in a will or deed2.
1
See para A1.130.
2
Re Taylor, Pullan v Taylor [1931] 2 Ch 242.

13.43 Where, in an intestacy prior to 1926, land had vested in an heir at law
who died after 1925, an infant, it was held that by virtue of this subsection the
land vested in the next heir to the intestate. Letters of administration had been
granted to the widow, who died leaving real estate only unadministered. The
grant de bonis non was made to the next heir as ‘in the events that have
happened the heir at law of the intestate’1.
1
Re Hirst (1938) 27 June.

PARTICULAR CASES

Resealed grant
13.44 Where a Colonial grant has been resealed in England, on the death of
the person to whom the grant was issued, an English grant de bonis non may
be obtained. Such a grant is made in accordance with the normal rules and
principles applicable according to the place where the deceased died domiciled.
For practice in making grants where the deceased died domiciled out of
England and Wales, see Chapter 12.
13.45 The resealing of Scottish confirmations and Northern Irish grants in
England and Wales, and vice versa, was abolished by the Administration of
Estates Act 19711 and a grant or confirmation issued in that part of the United
Kingdom in which the deceased was domiciled and containing a statement of
such domicile, is effective to make title to the estate of the deceased situate in
any part of the United Kingdom. This applies to grants and confirmations
issued before as well as after the commencement of the Administration of

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 Particular cases 13.50

Estates Act 1971.

1
See para A1.205 ff.

13.46 If, in special circumstances, on the death of the person to whom

confirmation was granted in Scotland or a grant was made in Northern
Ireland, it is desired to obtain further representation in England and Wales
rather than in the country of domicile, the grant will be in respect of the estate
in England and Wales only, and will be limited until further representation is
granted in the country of domicile: see also para 12.23.

Administration, with draft or copy of will annexed, ‘de bonis non’

13.47 On the death of an executor who has taken probate of a will as

contained in a draft, copy, or reconstruction of the will, without appointing an
executor, or of the grantee of letters of administration, with such draft or copy
etc annexed, leaving part of the testator’s estate unadministered, letters of
administration, with the draft or copy etc of the will annexed, de bonis non
may be granted in accordance with the normal practice, it being again shown
by affidavit that the original will has not been found. But if the original will has
been found, application should be made for a cessate grant (see paras 13.85 ff).

For the use and benefit of a person who lacks capacity within the meaning
of the Mental Capacity Act 2005 to manage his affairs

13.48 If the person entitled to a grant of administration (with or without will)

de bonis non lacks capacity to manage his affairs within the meaning of the
Mental Capacity Act 2005, administration de bonis non may be granted for his
use and benefit to the persons to whom an original grant would have been
made in the same circumstances. The lack of capacity of the person for whose
use the grant is made should be established in the same manner as in the case
of an original grant (see paras 11.261 ff).

Sole grantee lacks capacity to manage affairs

13.49 As to the practice where the sole grantee subsequently lacks capacity to
manage his affairs within the meaning of the Mental Capacity Act 2005, see
paras 17.64 ff.

Limited administration (with or without will) ‘de bonis non’

13.50 If, on the death of an executor who has taken probate, or of an

administrator who has taken administration, limited to a particular part of the
estate, that part of the estate is left unadministered, limited letters of
administration (with will as appropriate) of the unadministered estate of the
deceased will be granted to parties having the same kind of interest as that
which the court recognised in the original grant.

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13.51 Grants ‘de bonis non’ – Cessate grants – Double probate

Limited administration (with will) ‘de bonis non’ to legatee

13.51 When an executor has proved his testator’s will, and has administered
the estate with the exception of a legacy which has been set apart and remains
invested in the original testator’s name, the court, on the death of the executor
and the breaking of the chain of executorship, with the consent or upon the
citation of the residuary legatees, has granted administration (with the will
annexed) de bonis non to the legatee, limited to his legacy1.
1
Re Steadman’s Goods (1828) 2 Hag Ecc 59; Re Biou’s Goods, Indigent Blind School and
Westminster Hospital v Flack (1843) 3 Curt 739 at 741. But see also Re Watts’ Goods (1860)
1 Sw & Tr 538 at 540; also Re Lady Somerset’s Goods (1867) LR 1 P & D 350 (limited grant
will not, save for very strong reasons, be given to a person entitled to a general grant).

13.52 Under the present practice, however, except by order under s 116 of the
Senior Courts Act 19811, the court will not grant limited administration
without the renunciation or citation of persons entitled to a general grant in
priority to the applicant (see NCPR SI 1987/2024 r 51(b)).
1
See para A1.335. For practice on application for such an order, see paras 25.96 ff.

Limited administration ‘de bonis non’ in respect of legal proceedings

13.53 When the grantee of administration limited to institute or defend legal
proceedings dies before the termination of the proceedings, he is considered to
have left the estate unadministered, and a further grant may be made to
another person by order under s 116 of the Senior Courts Act 1981 (see also
para 11.374 ff).

Administration ‘de bonis non’, as distinguished from ‘cessate’

13.54 If the donor of a power of attorney, for whose use and benefit
administration has been granted, should die in the lifetime of the attorney
administrator, the subsequent grant will be a grant of administration de bonis
non and not a cessate grant.
13.55 If, however, the attorney should die in the lifetime of the donor of the
power, a further grant made to another attorney is a cessate grant.
13.56 If a person who is incapable of managing his affairs, for whose use and
benefit a grant has been made, should die in the lifetime of the administrator,
a further grant will be a grant de bonis non; whereas, on the death of the
administrator, a further grant made during the lifetime of the incapable person
is a cessate grant.
13.57 As to cessate grants, see paras 13.81 ff.

Settled land

13.58 Where necessary, a grant de bonis non may be made limited to settled
land.

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 Practice in grants ‘de bonis non’ 13.66

PRACTICE IN GRANTS ‘DE BONIS NON’

Where granted
13.59 Grants de bonis non, and all other second or subsequent grants, may be
extracted from the registry from which the original grant issued or from any
other probate registry.

Oath

13.60 It must be sworn in the oath leading to every grant de bonis non
whether there is (still) any minority or life interest under the will or intestacy
and whether there was land vested in the deceased which was settled
previously to his death (and not by his will) and which remained settled land
notwithstanding his death1.
1
NCPR SI 1987/2024 r 8(4) and (3).

13.61 If a minority or a life interest still remains, the grant de bonis non must
normally be made to a trust corporation1, with or without an individual, or to
not less than two individuals (Senior Courts Act 1981, s 114(2)2).
1
As to grants to trust corporations, see Chapter 9.
2
See para A1.333.

13.62 Where it is sought to obtain a grant to two individuals not equally

entitled, the requirements of NCPR SI 1987/2024 r 25 as to the joinder of the
second grantee must be considered, as in the case of an application for a first
grant. See ‘Second administrator’, paras 7.12–7.16.
13.63 The form of oath differs from that for the first grant in an estate in the
following respects:
(a) Full particulars must be given of the former grant; and the date of the
death of the grantee or person whose death necessitates the grant de
bonis non must be sworn to.
(b) If the original grant was one of probate, the oath must show how the
chain of executorship is broken (see also paras 13.04 and 13.05).
(c) The oath should show that part of the estate remains unadministered.
13.64 Where the grant is required for making title only, it may be sworn that
the grantee died ‘without having completed the administration of the estate’.
This situation may occur for example when the spouse or civil partner has
appropriated the property to which he or she was entitled under the will or
intestacy. The oath should confirm this fact.
13.65 Forms of oath, Nos 178 ff (A6.183 ff).

Amount of estate

13.66 The administrator will swear to administer the unadministered estate,

and the amount of estate sworn to in the oath will be the value of what remains
unadministered at the time.

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13.67 Grants ‘de bonis non’ – Cessate grants – Double probate

Letters of administration (with will) ‘de bonis non’: marking of will or copy

13.67 In all cases of administration (with the will annexed) de bonis non, the
applicant, when he swears the oath, must normally swear to and mark the
original will, the probate copy annexed to the previous grant or an office copy
of the will. An unsealed facsimile copy not issued by the registry is not
acceptable unless the district judge or registrar gives leave under NCPR SI
1987/2024 r 10(2). Where a copy of the will is marked, the oath should state
that the document so marked contains an official copy (or facsimile copy,
where the district judge’s or registrar’s leave has been obtained) of the last will
and testament of the testator.
13.68 It should be noted that if the probate copy of the will annexed to the
former grant is marked by the applicant, the registry will retain it and be part
of the court record. It is therefore usually more convenient to bespeak an office
copy of the will for marking.
13.69 In particular, where a de bonis non grant is necessary because of the
incapacity of the original grantee, the probate copy should not be marked, as
the grant may be required in the event of the recovery, or of the death, of the
incapable person.
13.70 If the administrator wishes to swear to the original will, he must attend
in the registry where the will is deposited, and swear the oath before one of the
officers authorised to administer oaths in that registry. In this case the original
will must be obtained and an inspection fee of £20 is payable for inspecting it.
In addition, a fee of £11 is charged for administering an oath to each deponent,
and £2 for marking each exhibit1.
1
NC Probate Fees Order 2004 (SI 2004/3120) (as amended), Fees 7 and 9.

Foreign will
13.71 Where the former administrator swore to a notarial copy of the will, the
applicant for a second grant may swear to and mark the copy already filed, a
fresh notarial copy, the copy annexed to the former grant, or an office copy of
the document proved in this court1, or, if the district judge or registrar gives
leave under NCPR SI 1987/2024 r 10(2), a facsimile copy.
1
Registrar’s Direction (1927) 8 December.

Engrossment of will
13.72 In the case of a will proved at a district registry before the introduction
of photography, where application for the de bonis non grant is made at that
registry, the probate copy for annexing to the de bonis non grant will wherever
possible be made by the photographic process (or other process which
produces a facsimile copy). If the original will is unsuitable for facsimile
reproduction (see paras 4.234–4.236) an engrossment will be made in the
registry, or may be supplied by the practitioner if he prefers1.
1
Registrar’s Direction (1952) 18 February.

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 Cessate grants 13.82

13.73 On an application at the Principal Registry, if the will has been proved
and registered at a district registry a photographic copy is made, in the
Registry, of the document sworn to by the applicant.

HMRC account

13.74 For the appropriate form of account, when required, for use on
application for a grant de bonis non, see para 8.74.
13.75 Copies of HMRC accounts filed at HMRC Trusts and Estates, Inheri-
tance Tax on obtaining primary grants are not supplied by that Office for the
purpose of completing any further account required on a second or subsequent
grant. It is necessary only to make reference to the estate remaining unadmin-
istered.
13.76 See Chapter 8 of this Supplement for updates in practice for the
submission of HMRC accounts.

Papers required

13.77 The practitioner lodges the oath and HMRC account summary (A5C)
or return of estate (Form IHT205) (if required: see Chapter 8) at the probate
registry or sub-registry. If the papers are lodged at the probate registry other
than that from which the previous grant was extracted, the previous grant, or
an office copy thereof, must also be lodged. Unless ‘marked’ by the applicant
(see paras 13.67–13.70), the former grant or office copy will be returned with
the new grant.
13.78 See para 2.09, as to lodging papers by post.

Fee for grant

13.79 The fee for a de bonis non grant is £20 in all cases1.
1
NC Probate Fees Order 2004 (SI 2004/3120) (as amended), Fee 3.

13.80 This fee does not include the fee for a copy of the former grant, or of
the will for marking, where these are required.

CESSATE GRANTS

Nature

13.81 A further grant, commonly called a cessate grant, may be made upon
the expiry of the time or the accomplishment of the event or contingency
pending which a limited grant (see Chapter 11) has been made.
13.82 A cessate grant is also made upon the death of the surviving attorney or
guardian or other grantee1 where the grant was made for the use and benefit
of a person whom the grantee represented, and was limited in duration, eg

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until that person should obtain a grant. Upon the death of the person for
whose use and benefit the grant was made, a subsequent grant is a grant de
bonis non (see para 13.54).
1
See NCPR SI 1987/2024 r 26 and paras 7.40–7.47, as to the possible appointment of a
substituted administrator upon the death of the first of two grantees, in cases where a minority
or a life interest arises under the will or intestacy, by means of which the necessity for a cessate
grant might be obviated.

Distinction between cessate and ‘de bonis non’ grants

13.83 Although a cessate grant is usually required only where the de-
ceased’s estate has not been fully administered, it is distinguished from a grant
de bonis non, as being a re-grant of the whole of the deceased’s estate.
13.84 The applicant swears as to the unadministered value of the estate at the
time of the application.

Discovery of lost will, or more authentic copy

13.85 When probate has been granted of a reconstruction of a will, or of a will

as contained in a copy or draft, limited until the original or a more authentic
copy be proved, if the original will or a more authentic copy of this is
discovered the grant does not cease until formal steps are taken to prove the
document which has been discovered.
13.86 If the document first proved does not correspond in all respects with the
original will it may be desirable for the grantee to apply for a cessate grant, but
if neither the grantee nor any other person is willing to take the requisite action
it is considered by the district judges and registrars that they cannot insist upon
it1.
1
Registrar’s Direction (1971) 21 April.

13.87 On an application for a cessate grant, the oath should state that probate
of the will of the deceased, as contained in a copy thereof, was granted ‘at the
[named] registry on the day of , to A B, limited until
the original will or a more authentic copy be proved’, and should recite the
discovery of the original will or the more authentic copy (as the case may be).
If in the meantime the grantee has died, the will may be proved by the person
next entitled.

Death of executor for life or other limited period

13.88 Where an executor appointed for his life takes probate, the grant ceases
finally on his death, being distinguishable from an ordinary grant of probate
which may continue to be effective, by chain of executorship, in spite of the
death of the grantee. An executor substituted in the will at the decease of the
executor for life may take a cessate grant of probate. For form of oath, see No
74 (A6.79).

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 Cessate grants 13.96

13.89 If an executor who was appointed for a limited period other than his life
takes probate, the grant ceases upon the expiration of such period, and the
substituted executor, if one was appointed by the will, may obtain cessate
probate.
13.90 Probate granted to an executrix ‘during widowhood’ ceases on her
remarriage, and a cessate grant of probate may be made to the executor
substituted. The oath should state that: ‘The probate etc, granted at etc, to A,
has ceased and expired by reason of her having intermarried with B on the
day of ’.
13.91 If no executor is substituted in the will, administration (with will) is
granted to the person next in order of priority under NCPR SI 1987/2024 r 20
(see Chapter 5).

Grant for use of executor who lacks capacity to manage his affairs

13.92 When administration (with the will annexed) has been granted for the
use and benefit of an executor who lacks capacity to manage his affairs within
the meaning of the Mental Capacity Act 2005 and it is limited ‘for his use and
benefit’ or as previously ‘during his incapacity’, it ceases on his recovery; he
may then take probate of the will.
13.93 If the administrator should die before the recovery of an executor who
lacks capacity to manage his affairs, further administration (with the will
annexed) may be granted to some other person for the use and benefit of the
executor, the latter’s lack of capacity to manage his affairs being established in
the same manner as on the occasion of the first grant. The oath should recite:
‘That on the day of 20 letters of adminis-
tration (with the said will annexed) of the estate of the said deceased were granted
at the [ ] registry, to A B the residuary legatee named in the said
will (or as the case may be) for the use and benefit of C D the sole executor therein
named who lacks capacity to manage his affairs within the meaning of the Mental
Capacity Act 2005 during his incapacity. That the said A B died on the
day of 20 whereby the said letters of
administration (with the said will annexed) have ceased and expired. That the said
C D continues to lack capacity to manage his affairs within the meaning of the Act’.
13.94 If the grant had issued, under previous Non-Contentious Probate Rules,
for the use and benefit of an executor who was physically incapable of
managing his affairs, on the death of the administrator before the recovery of
the physically incapable executor, the executor may now appoint an attorney
to apply for a further grant for his use and benefit (see paras 11.31 ff).
13.95 If the grant was for the use and benefit of the incapable person and was
limited ‘until further representation be granted’ it does not cease upon the
recovery of the incapable person but continues until such time as a further
grant issues to the recovered person (or to somebody else).
13.96 If the incapable executor should die without recovering his capacity,
administration (with the will annexed) de bonis non may be granted to the
person next entitled in order of priority under NCPR SI 1987/2024 r 20.

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13.97 Grants ‘de bonis non’ – Cessate grants – Double probate

Grant for use of minor executor

13.97 Administration (with the will annexed) which has been granted to
guardians or other persons for the use of an executor during his minority
ceases when the executor attains his majority, and probate may be granted to
the executor. For form of oath, see No 75 (A6.80).
13.98 Such a grant also ceases by reason of the grantee’s death during the
executor’s minority, and in that case cessate letters of administration (with
will) may be granted to new guardians or other persons entitled thereto. See
paras 11.142 and 11.143.
13.99 In such cases, the oath must give respectively (a) the date upon which
the executor came of age, or (b) the date of the grantee’s death.

Application by donor of power of attorney for direct grant

13.100 Where administration (with or without will) has been granted to an

attorney of the executor, or other person entitled to a grant, the latter may at
any time apply for and obtain a cessate grant to himself, whereupon the limited
grant ceases. Form of oath, No 76 (A6.81). The executor should give notice of
his application for a cessate grant to the attorney.

Death of attorney or of donor of power of attorney

13.101 A grant to an attorney for the use and benefit of the executor or other
person entitled ceases on the death of the attorney, and a cessate grant may be
made to another attorney, or to the person entitled himself1.
1
In Re Barton’s Goods [1898] P 11, on the death of an administrator who was the attorney of
one of the persons entitled to the estate, cessate administration was granted to the attorney of
another person entitled, on notice to the donor of the original power of attorney. (Although
described in the report as a grant de bonis non, the grant was in fact a cessate grant.)

13.102 The oath must include particulars of the former grant, and the death
of the attorney. Form of oath, No 141 (A6.146).
13.103 But if the executor, or other person, should die in the lifetime of the
attorney administrator and before the administration of the estate has been
completed, the grant determines, and a further grant is a grant de bonis non:
see para 13.54.

Foreign domicile—cessate grants

13.104 Where a grant has been made by order of the district judge or registrar
to the attorney of a person entrusted by the court of domicile, or of the person
beneficially entitled to the estate by the law of the domicile, limited until
further representation be granted, and the donor of the power later applies for
a direct grant, an affidavit must be filed showing:
(a) that the order entrusting is still in force; or
(b) that the person concerned is still beneficially entitled to the estate,

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 Cessate grants 13.111

and a further district judge’s or registrar’s order will be necessary1.

1
Registrar’s Direction (1972) 20 November.

Grant limited to legal proceedings

13.105 Administration limited to taking or defending legal proceedings ceases
on the termination of the proceedings, or on the prior death of the grantee.
Form of oath for a cessate grant, No 142 (A6.147).

Administration (with or without will) for use of minor beneficiary

13.106 A grant of administration or administration (with will) which has been

made to parents or guardians (or a parent or guardian and co-administrator)
for the use and benefit of a minor beneficially entitled ceases on the latter
attaining full age, and he may then obtain a cessate grant of administration, or
administration (with will) as the case may be. Forms of oath, Nos 140 and 177
(A6.145 and A6.182).
13.107 If the grant was made for the use and benefit of two or more minors
sharing in the estate, it ceases when the first of them attains full age: the latter
may thereupon take a cessate grant, a co-administrator normally being
necessary because of the continued minority interests. As to joinder of a
co-administrator, see Chapter 7.
13.108 If one of the administrators should die before majority is attained by
any one of the minors, application may be made, under s 114(4) of the
Senior Courts Act 19811, for the appointment of an additional administrator
(see NCPR SI 1987/2024 r 26: for practice see paras 7.40–7.42).
1
See para A1.341.

13.109 If the sole minor, or all the minors (where there are several) die before
attaining his or their majority, the grant made for their use and benefit expires,
and the form of the subsequent grant is de bonis non. (See, however, paras
6.179 and 13.41, as to the divesting of their interests.)

Grant taken by parent or guardian in representative character also ceases

13.110 When parents or guardians or other persons take administration (with

will) or administration for the use and benefit of minors limited until one of
them shall attain his majority, and afterwards, in their representative character,
take administration of the estate of another person, the later grant will be
similarly limited and both grants cease as soon as one of the minors attains his
majority.

Administration to person on recovering capacity to manage his affairs

13.111 Where administration has been granted to a person authorised by

the Court of Protection, or to some other person, for a person who lacks

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13.111 Grants ‘de bonis non’ – Cessate grants – Double probate

capacity to manage his affairs limited while he lacks capacity to manage his
affairs, the grant ceases on the recovery of that person, or the death of the
administrator; and a cessate grant may be made in the one case to the person
who formerly lacked capacity himself, and in the other to a person authorised
by a further order of the Court of Protection (see paras 11.254 ff), or some
other person, for the use of the person who lacks capacity (as the case may
require).
13.112 In the case of the administrator’s death, where the original grant was
made to a person other than the person authorised by the Court of Protection
or an attorney acting under a registered enduring power of attorney or
registered lasting power of attorney, evidence must again be adduced as to the
lack of capacity of the person for whose use and benefit administration is to be
granted.
13.113 The recovery of the person who lacks capacity must be proved:
(a) where administration has been granted to a person authorised by an
order of the Court of Protection, by the production of the order of
that Court determining the proceedings; or
(b) where administration has been granted to some other person, by an
affidavit of the doctor.
Unless the consent of the person who obtained the limited grant is lodged,
evidence will be required that notice of the application for a cessate grant has
been given to him.
13.114 If the grant for the use and benefit of the person who lacks capacity
was limited until further representation be granted, it does not cease on the
recovery of the person who formerly lacked capacity. The recovered person
may apply for a grant himself, supported by evidence as to his recovery as in
the preceding paragraph, and the limited grant ceases on the issue of the new
grant.
13.115 A grant for the use and benefit of a person who lacks capacity is
indicated to be until further representation be granted. However, the position
is not free from doubt if that person should die before administration is
completed. Letters of administration de bonis non will be granted to the person
next entitled to the grant or, if the person who lacked capacity was solely
entitled to the estate, to his personal representative.

Practice on application for cessate grant

13.116 The practice in obtaining cessate grants is, except where otherwise
stated, similar to that in obtaining grants de bonis non, as to which, see paras
13.59 ff.
13.117 The oath must in all cases recite the particulars of the former grant and
the circumstances of its cessation. The applicant should swear that he will
administer all the estate, but the amount to be inserted in the oath is that
remaining unadministered.

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Fee on grant

13.118 The fee for a cessate grant is £20 in all cases1.

1
NC Probate Fees Order 2004 (SI 2004/3120) (as amended), Fee 3.

DOUBLE PROBATE
13.119 Where a number of executors have been appointed in a will, and
probate has been granted to one or some, but not all, of them, power to apply
for a like grant is reserved to such other of the executors as at that time have
not renounced probate.
13.120 Probate may not be granted to more than four persons in respect of the
same part of the estate of a deceased person1.
1
Senior Courts Act 1981, s 114(1) (see para A1.333).

13.121 It follows that, where probate has been granted to four executors, any
remaining executors can take up their powers only as vacancies occur among
the acting executors.
13.122 Upon application for probate by an executor to whom power has been
reserved, the grant is called ‘double probate’ and it runs concurrently with the
first grant if any of the first grantees are still living. It confers the same rights
as an original grant. There may be several concurrent grants of double probate.
13.123 Where a grant of probate has been made to two executors, power
being reserved to another executor, and the acting executors have both died,
and a codicil has since been found, the executor to whom power was reserved
may take a grant of double probate of the will together with the codicil.
13.124 Where a will and codicil had been proved by two executors and one
had since died, a grant of probate of another codicil, since found, can be made
to the surviving executor. Where probate of a will was granted to two
executors, a codicil was subsequently found, but both executors had since
died, a grant of probate of the codicil was made to the executor of the survivor
of the deceased executors1.
1
Re Roberts (1934) unreported.

13.125 As to the practice in cases where the proving executor subsequently

lacks capacity to manage his affairs within the meaning of the Mental Capacity
Act 2005, see paras 17.64 ff.
13.126 As to power reserved and double probate in respect of settled land
grants, see paras 10.96 and 10.97.

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13.127 Grants ‘de bonis non’ – Cessate grants – Double probate

Practice

13.127 Double probate may be extracted from the Principal Registry or from
any district probate registry: application may be made by post1.
1
See paras 2.09 ff.

13.128 A double probate is general in its terms, but the amount of the estate
included in the oath to lead the grant is that only which remains unadminis-
tered.

Oath

13.129 The oath must give particulars of the former grant, and show that
power was reserved to the other executors and, where probate was originally
granted to four executors, that a vacancy or vacancies have occurred by death,
giving the name and date of death of the executor or executors who have died
since the date of the first grant. For forms of oath, see Nos 70 and 71 (A6.75
and A6.76).

Will or probate to be marked

13.130 The executor may swear to and mark either the original will, or the
copy annexed to the first grant of probate (provided, in the latter case for
practical reasons, that all the proving executors are dead); or, as is the usual
practice, he may swear to an office copy of the will or, with the district
judge’s or registrar’s leave, a facsimile copy of the will. See also paras
13.67–13.70.

Renouncing executor permitted to prove will

13.131 An executor who has renounced probate may, in certain circum-

stances, be permitted, by order of a district judge or registrar, to retract his
renunciation (NCPR SI 1987/2024 r 37(3): see paras 15.62 ff).
13.132 Where an executor who has renounced probate is permitted to retract
his renunciation and prove the will, a notation of the subsequent probate is
made upon the original grant of probate or administration (with will): see also
paras 15.72 ff.

Photographic copy or engrossment, HMRC account etc

13.133 For practice as to photographic copy or engrossment of will, HMRC

account, office copy of former grant, etc, see ‘Practice in grants “de bonis
non”’ (paras 13.59–13.80), which applies also in relation to double probates.
13.134 If in exceptional cases the applicant for a grant of double probate finds
it impossible to complete the HMRC account without information as to the
contents of the account filed on the original application the matter should be
referred to HMRC Trusts and Estates, Inheritance Tax.

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 Double probate 13.135

Fee for grant

13.135 The fee for a grant of double probate is now £20 in all cases1.
1
NC Probate Fees Order 2004 (SI 2004/3120) (as amended), Fee 3.

265