Chapter 15

RENUNCIATION AND RETRACTION

Renunciation 595
Retraction 603

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.

RENUNCIATION

Renunciation

15.01 Renunciation is the act whereby a person having a right to probate or

administration waives and abandons it.

Result of renunciation

15.02 Renunciation must be made absolutely and without reserve; it takes

effect from the day of its date1, but can be withdrawn and is not final until
filed2. It is permanent, and can be acted upon and referred to in all succeeding
grants3; but there is power to allow a renunciation to be subsequently
retracted: see paras 15.62 ff.
1
Munday and Berry v Slaughter (1839) 2 Curt 72.
2
Re Morant’s Goods (1874) LR 3 P & D 151.
3
Harrison v Harrison (1846) 1 Rob Eccl 406, 4 Notes of Cases 434.

15.03 Except in the case of executorship, a renunciation does not bind the
personal representatives of the renouncing party1.
1
As to the effect of a renunciation by an executor, see paras 15.55 ff.

15.04 Where the renunciant was the only person entitled to the estate, and
died between the date of his renunciation and the application for a grant by a
creditor, it was held that the renunciation could not be acted upon against, and
did not bind, his personal representative.

Form of renunciation

15.05 A renunciation should be witnessed by a disinterested person; it need

not be under seal. See also paras 15.10–15.14.
15.06 A bare deed of disclaimer is not a renunciation. However, if made in
respect of a death on or after 1 February 2012 it is sufficient to clear off the

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title of the person making it. The Estates of Deceased Persons (Forfeiture Rule
and Law of Succession) Act 20111 has amended Part 4 of the Administration
of Estates Act 1925 and the Wills Act 1837. Where a person is entitled to the
residuary estate of an intestate or to a bequest or devise in a will and he
disclaims it he is treated as having died immediately before the intestate or the
testator as the case may be. In the case of a will this outcome would be negated
by a contrary intention expressed in the will. Apart from this if such person
will not renounce, the deed may be relied upon in an application under s 116
of the Senior Courts Act 1981 for an order to appoint some other person (see
paras 25.96 ff).
1
See paras A1.685A ff.

15.07 Forms of renunciation, Nos 191 ff (A6.196 ff).

15.08 A renunciation in the English language by a person who does not speak
English or Welsh will not be accepted unless it was executed before a notary
public, or the district judge or registrar is satisfied by some other means that
the renunciant understood the meaning and effect of the document.
15.09 As to renunciation by an executor where the domicile is other than in
England and Wales, see para 12.86.

Renunciation by trust corporation

15.10 The renunciation by a trust corporation is accepted in the form of a

renunciation under seal or by an official duly appointed for the purpose of
executing renunciations1 or as executed in accordance with the following
paragraph. If the corporation has no seal, or if the renunciation is not under
seal or executed as in the following paragraph, a certified copy of a resolution
of the governing body showing who is nominated or authorised to execute the
form of renunciation must be lodged with the renunciation, which must be
attested as in the case of a renunciation by an individual.
1
Secretary’s Circular, 19 July 1955.

15.11 A company is no longer required to have a seal. As an alternative to

sealing a deed, a company may now execute a deed (including a deed of
renunciation) by either a director and the company secretary or two directors
signing it as a deed, or by a director in the presence of a witness who attests
the deed or by appointing an attorney to execute the deed—Companies Act
2006, s 44 with effect from 6 April 2008.

Renunciation by a corporation other than a trust corporation

15.12 A non-trust corporation wishing to renounce its right to a grant should

by special or general resolution appoint a nominee to renounce on its behalf,
in the same way that it would appoint a nominee to take a grant for its use and
benefit (see paras 5.239 ff). When lodged at the registry, the renunciation
should be accompanied by a sealed, or otherwise properly authenticated, copy
of the resolution.

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 Renunciation 15.20

15.13 In practice, however, a renunciation by resolution of the board of

management of the corporation is acceptable.
15.14 See also para 15.11.

Renunciation by members of a partnership

15.15 NCPR SI 1987/2024 r 37, which deals with renunciation of probate or

administration, was amended by the Non-Contentious Probate (Amendment)
Rules 1998 to include:
‘(2A) Renunciation of probate or administration by members of a partnership—
(a) may be effected, or
(b) subject to paragraph (3) below, may be retracted by any two of them
with the authority of the others and any such renunciation or
retraction shall recite such authority.’
This amendment particularly simplifies the procedure by which a large
partnership firm spread over several locations may renounce probate or
administration. The recitation of the authority of the other partners which the
rule requires to be mentioned in the renunciation is merely a statement to that
effect. In this context the procedure applies to a limited liability partnership or
other incorporated practice. For form of renunciation by a partnership see
Form No 193 (A6.198). This form may be adapted for renunciation of
members of a limited liability partnership or incorporated practice.

When made
Before application for grant

15.16 An executor may renounce probate as soon as his testator is dead, and
his renunciation can be filed at a probate registry, provided that it is
accompanied by the original will. Where the executor is also entitled to a grant
under any lower title, his renunciation will not be accepted unless he also
renounces administration (with will) in such lower title1.
1
Registrar’s Direction (1954) 5 October. See Re Fenton’s Goods (1825) 3 Add 35.

15.17 In one case, where the will could not be found, the renunciation of the
executor together with a verified copy of the will and an affidavit as to the loss
were directed to be filed with the probate department at the Principal Registry
in order to break a chain of executorship.
15.18 Where no executor is named in the will, a residuary legatee or devisee,
or, if there is none, a person entitled to the undisposed-of estate, may renounce
and file the will.
15.19 The testamentary documents, with the renunciation, are filed in, or sent
by post to, the probate department at the Principal Registry, or a district
probate registry. No fee is payable on lodging a will with a renunciation.
15.20 When a will and renunciation are lodged at the Principal Registry or at
a district probate registry this information is noted on the probateman

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computer system. This has the effect of noting the indexes of pending grant
applications and of caveats. This index is searched by the registry on every
application for a grant.
15.21 Wills lodged at a probate registry on renunciation are not open to
public inspection, nor can copies of such wills be obtained as of right.
Nevertheless, the fact that such a will exists and, where appropriate, its
contents, may be disclosed to any person reasonably establishing an interest1.
1
Secretary’s Circular, 11 November 1975.

15.22 Upon any subsequent application for a grant it may be necessary for the
applicant to attend to swear the oath and mark the will before an authorised
officer at the registry at which the will is filed; or arrangements may be made
for the will to be sent to another registry for this purpose. The district judge or
registrar now has a general discretion, under NCPR SI 1987/2024 r 10(2), to
allow a facsimile copy of the will to be marked in lieu of the original.

Upon application for grant

15.23 The more usual practice is for an applicant for a grant to file, with the
other papers, the renunciation of any co-executor, or of any person having an
interest prior to his own.

After grant, by executor to whom power was reserved

15.24 An executor to whom power of proving has been reserved (see para
4.54) may renounce his right to probate subsequently to the issue of a grant to
his co-executor. The renunciation need not refer to the fact of probate having
been granted.
15.25 The renunciation is filed at the registry from which the grant issued. In
Principal Registry cases it should be lodged at the probate department. It is not
necessary for the original grant or an office copy of the grant to be produced
when the renunciation is filed at the registry.
15.26 In district registry cases, the registrar transmits notice of the renuncia-
tion to the Probate Records Centre if it no longer has possession of the probate
file (see para 21.17).
15.27 A notation of the renunciation is made on the record. No fee is payable
for noting the record.

By whom made
By an executor

15.28 An executor must renounce or be cited (see Chapter 24) before any
party having an inferior interest can take. His consent alone is not sufficient for
that purpose1.
1
Garrard v Garrard (1871) LR 2 P & D 238.

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 Renunciation 15.35

15.29 An executor’s renunciation of probate does not operate as a renuncia-

tion of any right which he may have to a grant of administration (with will) in
some other capacity unless he expressly renounces that right (NCPR SI
1987/2024 r 37(1)).
15.30 Thus, where an executor who is also entitled in another character
renounces probate, the form of renunciation must include also a renunciation
of his right to letters of administration (with will) in order to enable a grant to
be made to some person with a lower title. This does not apply when an
application for probate is made by another executor.
15.31 An executor, in renouncing probate of his own testator’s will, renounces
thereby the executorship of any will of which his testator may have been
executor, and of all other wills comprised in the chain. He cannot renounce
probate of the first will, and take probate of the second one1, nor can he take
probate of his testator’s will and refuse the liability caused by the chain of
executorship.
1
Re Perry’s Goods (1840) 2 Curt 655.

By a personal representative
15.32 An executor, an administrator with the will annexed, or an adminis-
trator, may renounce any administration with the will annexed, or adminis-
tration, which he would be entitled to take in his representative capacity. If the
renunciant is the sole personal representative of his own deceased, such
renunciation will be a sufficient waiver to enable a grant to be made to a
person entitled in a lower degree. If there is another constituted representative,
the latter also must be cleared off.
15.33 Where an acting executor was cited, but could not be served personally
with the process, the court required the renunciation of the executor to whom
power was reserved; but it would seem that the renunciation of the acting
executor would have been sufficient if he had not absconded, or if he had been
personally served with notice of the application, or with a citation1.
1
Re Leach (1857) 14 May. By Sir John Dodson, and see s 8, Administration of Estates Act 1925
(para A1.96).

15.34 If no personal representative has been constituted, all persons who have
the prior potential right to obtain a grant to his estate must renounce the rights
they would acquire if they became his personal representatives. In such
circumstances, in the case of a will, the persons interested in the residuary
estate must renounce as well as the executor; and in the case of intestacy, all
persons entitled to share in the estate must renounce. See also para 5.229.

By attorney

15.35 An attorney may renounce on behalf of a person living abroad if

specifically authorised to do so by a power of attorney appointing him for that
purpose1. An attorney of an executor may not renounce probate for the

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executor but he may renounce in his attorney capacity.

1
Re Rosser’s Goods (1864) 3 Sw & Tr 490 at 492.

Renunciation on behalf of minors

15.36 Under NCPR SI 1987/2024 r 34(2):
‘The right of a minor to administration may be renounced only by a person
appointed under paragraph (2) of rule 32, and authorised by the district judge or
registrar to renounce on behalf of the minor.’
15.37 For forms of affidavit (witness statement) and renunciation, see Nos 19
and 196 (A6.24 and A6.201).
15.38 See also paras 11.149 and 11.150, as to application for the appoint-
ment of a person for the purpose of renouncing.
15.39 A mother has been appointed guardian by the court to renounce on
behalf of her unborn child1.
1
Re Wilmshurst (1830) August.

15.40 A minor executor’s right to probate on attaining the age of 18 cannot

be renounced by any person on his behalf. (NCPR SI 1987/2024 r 34(1)).
15.41 If a minor has been appointed an executor, the appointment does not
constitute him a personal representative for any purpose unless and until
probate is granted to him1. Consequently, on attaining full age he will be able,
if so desiring, to renounce probate, notwithstanding that a grant has been
taken during his minority by some other person for his use and benefit: the
grant for his use and benefit of course ceases on his attaining full age.
1
Senior Courts Act 1981, s 118 (para A1.337).

Renunciation by nearest blood relation of claim to be appointed on behalf

of minor
15.42 The nearest of kin of a minor may renounce his claim to be appointed
under NCPR SI 1987/2024 r 32(1), in order to assist an application by a
stranger or more distant relative to be appointed under NCPR SI 1987/2024
r 32(2) by district judge’s or registrar’s order.

By person appointed by Court of Protection

15.43 A person appointed by an order made by the Court of Protection,

previously under the Mental Health Act 1983 or now under the Mental
Capacity Act 2005, may renounce probate or administration on behalf of a
person who lacks capacity to manage his affairs, if specifically authorised so to
do (see NCPR SI 1987/2024 r 34(1)).

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 Renunciation 15.50

15.44 The nearest of kin of a person who lacks capacity to manage his affairs
within the meaning of the Mental Capacity Act 2005 is not allowed to
renounce on behalf of that person.
15.45 When no person has been authorised by the Court of Protection, the
only way of clearing off such a person who is entitled to a grant is by citation:
but in practice it is usual in such a case to apply for a grant for the use and
benefit of the person who lacks capacity or, in special circumstances, for a
grant under s 116 of the Senior Courts Act 1981, passing over the person who
lacks capacity (see paras 25.96 ff). As to grants for the use and benefit of
persons who lack capacity within the meaning of the Mental Health Act 2005,
see paras 11.243 ff.

By attorney acting under a registered enduring power of attorney or lasting

power of attorney

15.46 An attorney acting under a registered enduring power of attorney or

lasting power of attorney may renounce administration for the use and benefit
of the person who lacks capacity within the meaning of the Mental Health Act
2005 (see NCPR SI 1987/2024 r 35(2)(c)).

Where renunciation invalid. Executor having intermeddled

15.47 An act of a person appointed executor, relating to the belongings of a

testator, which shows an intention of assuming the executorship, or an act
which will make him liable as an executor de son tort, is regarded as
intermeddling1.
1
See 17 Halsbury’s Laws (4th edn) 723–725.

15.48 If an executor has intermeddled in his deceased’s estate, the court will
not accept his renunciation. It will be declared invalid1. It has, however, been
doubted by the Court of Appeal whether intermeddling of a trivial and
technical character, where the executor never assumed the duties of the office
nor acquired any special knowledge as such, has the effect of rendering the
renunciation invalid2.
1
Long and Feaver v Symes and Hannam (1832) 3 Hag Ecc 771 at 774; M’Donnell v
Prendergast (1830) 3 Hag Ecc 212 at 214; Jackson and Wallington v Whitehead (1821) 3
Phillim 577; Rayner v Green (1839) 2 Curt 248; Munday and Berry v Slaughter (1839) 2 Curt
72 at 76; Pytt v Fendall (1754) 1 Lee 553 at 557; Re Badenach’s Goods (1864) 3 Sw & Tr 465;
Mordaunt v Clarke (1868) LR 1 P & D 592; Re Lord and Fullerton’s Contract [1896] 1 Ch
228 (though intermeddling was confined to the foreign property).
2
Holder v Holder [1968] Ch 353, [1968] 1 All ER 665.

15.49 On no other ground can an executor be precluded from renouncing1.

1
Jackson and Wallington v Whitehead (1821) 3 Phillim 577.

15.50 The mere act by an executor of being sworn as such, and afterwards
changing his mind before probate has issued, is not of itself regarded as

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intermeddling1.
1
M’Donnell v Prendergast (1830) 3 Hag Ecc 212 at 216.

Compulsion to take a grant

15.51 No person other than an executor can be compelled to take a grant,
even though he may have intermeddled1. Such persons are therefore entitled to
renounce2. The method whereby an executor who has intermeddled can be
compelled to take a grant is dealt with at paras 24.27 ff and 24.93 ff. If it is
not desired in the circumstances of the case to compel the executor to act,
application may be made to pass him over under s 116 of the Senior Courts
Act 1981, notwithstanding that he has intermeddled3: see paras 24.93 ff.
1
Re Davis’ Goods (1860) 4 Sw & Tr 213, 29 LJPM & A 72.
2
Re Fell’s Goods (1861) 2 Sw & Tr 126.
3
Re Biggs’ Estate [1966] P 118, [1966] 1 All ER 358: see NCPR SI 1987/2024 r 47(5), (7).

Person renouncing administration cannot take in another character

15.52 Under NCPR SI 1987/2024 r 37(2):
‘Unless a district judge or registrar otherwise directs, no person who has renounced
administration in one capacity may obtain a grant thereof in some other capacity1.’

1
But see Re Loftus’ Goods (1864) 3 Sw & Tr 307 at 311; Re Toscani’s Estate [1912] P 1, as
to discretion of the court.

15.53 Thus, where a person, other than an executor, has two different
characters under the same will, he may not select, but must take administration
in the higher capacity.
15.54 Similarly, a residuary legatee or a person sharing in the estate on an
intestacy cannot, except by leave of a district judge or registrar, renounce as
such and take administration as a creditor. Application for the leave of the
district judge or registrar should be made without notice by lodging an
affidavit as to the facts at the registry at which the grant is to be extracted.

Exceptions

15.55 The renunciation of probate by an executor does not operate as a

renunciation of any right he may have to a grant in any other capacity, unless
he expressly renounces such right1.
1
NCPR SI 1987/2024 r 37(1).

15.56 An executor having renounced probate, for himself as such, and having
no other personal right, has been allowed to take administration (will) as the
attorney of his co-executors1.
1
Re Russell’s Goods (1869) LR 1 P & D 634.

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 Retraction 15.62

15.57 If an executor has no other capacity in which he can claim, he may in

exceptional circumstances be allowed to retract his renunciation of executor-
ship even though a grant may have been made to a person entitled in a lower
capacity (see ‘Retraction’, paras 15.62 ff).

Representative grant: consent of one of two administrators or executors

15.58 If a leading grant has been made to two administrators, one of whom
is disinclined to take a grant to which they have become entitled in their
representative capacity, his renunciation or consent will enable his co-grantee
to take it alone, except when a minority or life interest arises in connection
with the new grant and the court requires two administrators. In the case of
two executors no renunciation or consent is required from the other, if one of
them applies. See also paras 6.11–6.15.

Non-appearance to citation equivalent to renunciation

15.59 The non-appearance to a citation of a party having a superior interest,

if he has been served with such process, has the same effect as a renunciation.
See Chapter 24.

Non-appearance of executor

15.60 Section 5 of the Administration of Estates Act 1925 contains the

provision that where a person appointed executor by a will is cited to take out
probate of the will, and does not appear to the citation, his rights in respect of
the executorship shall wholly cease; and the representation to the testator and
the administration of his real and personal estate shall devolve and be
committed in like manner as if that person had not been appointed executor.
15.61 A district judge’s or registrar’s order is required, directing that a grant
be made to the citor. (See paras 24.73 ff, and NCPR SI 1987/2024 r 47(5)(a)).

RETRACTION

Retraction

15.62 The renunciation of a person of his right to a grant may, as a general

rule, be taken as final, he not being permitted to retract it except by district
judge’s or registrar’s order.
NCPR SI 1987/2024 r 37(3) provides:
‘A renunciation of probate or administration may be retracted at any time with the
leave of a district judge or registrar; provided that only in exceptional circumstances
may leave be given to an executor to retract a renunciation of probate after a grant
has been made to some other person entitled in a lower degree.’
A retraction by members of a partnership or a limited liability partnership or
other incorporated practice who have renounced probate or administration

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may be effected by any two of them with the authority of the others (NCPR SI
1987/2024 r 37(2A) as amended – see para 15.15 and for form of retraction
see Form No 198 (A6.203)).

Retraction by executor

15.63 Under s 5 of the Administration of Estates Act 1925, where an executor

renounces probate of a will his rights in respect of the executorship shall
wholly cease, and administration of the estate of the deceased is to be granted
as if he had not been appointed executor.
15.64 Notwithstanding this section, the court has the power to permit an
executor who has renounced to retract his renunciation and take probate1. But,
as stated above, permission to retract will be granted only in exceptional
circumstances after a grant of representation has been made to another person
entitled in a lower degree.
1
Re Stiles’ Goods [1898] P 12, decided under s 79 of the Court of Probate Act 1857, which was
in virtually identical terms. See also NCPR SI 1987/2024 r 37(3).

15.65 As to retraction by members of a partnership, limited liability partner-

ship or incorporated practice see para 15.62.
15.66 An executor wishing to retract must be prepared to show that his
retraction is for the benefit of the estate, or of those interested under the will
of the deceased1.
1
Re Gill’s Goods (1873) LR 3 P & D 113.

15.67 An executor who is also the residuary legatee and has renounced in
both capacities may, in special circumstances, be permitted to retract his
renunciation as residuary legatee1.
1
Re Richardson’s Goods (1859) 1 Sw & Tr 515; Re Morrison’s Goods (1861) 2 Sw & Tr 129;
Re Wheelwright’s Goods (1878) 3 PD 71.

15.68 In one case an executor who had renounced probate was not allowed to
retract his renunciation, but was permitted to take a grant de bonis non as a
creditor1.
1
Re Toscani’s Estate [1912] P 1.

Effect of retraction of renunciation by executor

15.69 Where an executor who has renounced probate has been permitted,
whether before or on or after 1 January 1926, to withdraw the renunciation
and prove the will, the probate is to take effect and be deemed always to have
taken effect without prejudice to the previous acts and dealings of and notices
to any other personal representative who has previously proved the will or
taken out letters of administration; and a notation of the subsequent probate
is made upon the original probate or letters of administration and the record
thereof, or, in the event of the original grant not being available, upon the
record; and the grant, when noted, is retained in the registry unless the court

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 Retraction 15.75

shall otherwise direct. See Administration of Estates Act 1925, s 61.

1
See para A1.94.

Retraction by persons other than executors

15.70 In the case of a person other than an executor, there is no statute or
rule requiring the existence of special circumstances to enable him to be
permitted to retract, but it should be established that retraction is necessary, eg
because of difficulty in constituting any other person as administrator to
complete the administration of the estate of the deceased1.
1
For old cases in which retraction was permitted, see Re Blake’s Goods (1866) 35 LJP & M 91;
Skeffington v White (1828) 1 Hag Ecc 699. There are no recent reported cases, as the matter
is now decided on application without notice to the district judge or registrar.

Renunciation not binding on personal representative

15.71 A person who has previously renounced by his guardian has been
allowed to retract; but the personal representative of a deceased renunciant of
administration (with or without will) is not bound by the renunciation, and no
retraction is necessary to enable such representative to obtain a grant, if
otherwise entitled to it.

Practice

15.72 Application for leave to retract a renunciation should be made without

notice to the district judge or registrar of the registry at which the renunciation
is filed1, supported by an affidavit (witness statement) of the facts, including a
statement of the circumstances in which retraction is necessary. The former
grant, or an office copy of it, should be lodged with the affidavit (witness
statement).
1
NCPR SI 1987/2024 r 37(4).

15.73 If leave is granted, the retraction should be drawn up and executed, and
lodged, together with the district judge’s or registrar’s order and affidavit
(witness statement), at the Principal Registry or district probate registry, as the
case may be, with the papers to lead the further grant.
15.74 As to notation of the grant and record in the case of retraction by a
renouncing executor, see para 15.69.
15.75 Form of retraction, Form 197 (A6.202).
Form of retraction by members of a partnership, Form 199 (A6.204).

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