The legal personal representative (executor) where there is a will nominating him as such otherwise an administrator with respect to the deceased who dies intestate is a trustee for the creditors and beneficiaries claiming under the deceased.  He holds the real and personal property of the deceased for their benefits and not his own.  Under the Trustee Act a personal representative is said to be a Trustee.  However the two relationships should not be treated as being exactly the same although the personal representative may become a trustee in the full sense.  In the case of Re Cockburn’s Wills Trust (Cockburn v. Lewis [1957] 1 Ch. 438.  Three persons had been appointed executors and trustees of a will two of them, predeceased the testator and the 3rd renounced probate.  Two administrators with the Will annexed were then appointed and they carried out their duties for a period of ten years after which a question arose relating to a scheme for the purpose of distributing the residuary estate.  A summons was taken out to determine whether the administrators who had cleared the estate and completed the administration in the ordinary way were trustees for the purposes of the will and therefore at liberty to exercise the powers and discretions conferred on the trustees for the time being of the will.  It was held that the administrators having duly completed their duties as administrators had the power under the Act to appoint new trustees of the will to act in their place and that if they did not so appoint, new trustees to execute the trusts of the will, they themselves would become trustees in the full sense.  The judge stated at page 440 “whether persons are executors or administrators, once they have completed the administration in due course, they become trustees holding for the beneficiaries either on an intestacy or under the terms of the will and are bound to carry out the duties of the trustees though in the case of personal representatives they cannot be compelled to go on acting indefinitely as trustees and are entitled to appoint new trustees in their place and thus clear themselves form those duties which were not expressly conferred on them under the terms of the testator’s will and which for that purpose they are not bound to accept.”

There are differences in the offices of the personal representatives and the trustee, the duty of trustees who administer trust on behalf of beneficiaries some of whom may be minors or even unborn may be a long continuing process and many years may elapse before a trust can be brought to an end.  On the other hand the primary duty of personal representatives is to wind up the estate by paying debts and taxes and thereafter distributing the residue to the persons beneficiary entitled to it or to trustees who in some cases may be themselves to hold on trust if there is provision for a continuing trust.  The trustee’s duty is not merely the passive one different from a personal representative whose duty is to wind up and distribute the residue estate.  Whereas a beneficiary has an equitable interest in the trust property, as soon as the trust takes effect a person who is entitled to a share of the deceased estate has no proprietary interest while the assets of the estate remain in the course of administration.  All he has is a right to require the deceased estate to be duly administered by the personal representatives.  Refer to the case of Commissioner of Stamp Duties V. Livingstone  [1965] A.C. 694 and Re Leigh’s Wills Trust [1970] Ch. 227.  in Re Leigh’s it was held that the nature of the interest of a beneficiary under a will is a right to require the estate to be duly administered which right is a ‘chose’ in action which is transmissible.

In commissioner of stamp duties, it was held that the executor takes both legal and equitable title subject to his fiduciary duties to the beneficiaries and creditors of the testator for whose benefits he is to administer the estate. A beneficiary under a trust acquires proprietary rights immediately the trust comes into operation.

There are also differences in respect of the limitation periods under Section 20 and 21 of Cap 22.


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