I became involved in a recent High Court application concerning the correct approach for an executor to take when serving notice of power reserved. It is a relatively discrete and technical point, and one which the law has not really ever addressed (as research led me to believe).
The dilemma begins with a situation that many private client practitioners may find themselves in. Where a Will appoints two executors, but they are in dispute as to pre-grant matters, they often hit a roadblock, because one or both of them may have applied to the Probate Registry to enter a caveat. A caveat prevents all and anyone from obtaining a grant of representation.
In the present case, we were instructed by one of the executors under the Will. The other executor did not agree to our appointment, and did not agree to his sibling progressing the estate administration alone.
In the usual course of events, we prepared a probate application, and a notice of power reserved was served on the other executor. The other executor responded, rejecting our notice. His position was that we required his consent before we could continue with our application.
Rule 27 of the Non-Contentious Probate Rules 1987 provides:
“(1) Subject to paragraphs (1A), (2) and (3) below, where, on an application for probate, power to apply for a like grant is to be reserved to such other of the executors as have not renounced probate, notice of the application shall be given to the executor or executors to whom power is to be reserved; and, unless the district judge or registrar otherwise directs, the applicant must state in the application that such notice has been given.”
Accordingly, a grant of probate was issued to our client, with power reserved on the other executor. The estate’s assets were then collected in, the estate’s debts were settled, and a final account was drawn-up.
Unhappy that our client had progressed without him, the other executor refused to approve the estate account, and insisted that the court determine the matter of whether or not consent was required for a notice of power reserved to be effective. Notably, no remedy was sought in the application as one might have expected, such as for example revocation of the grant.
At a short hearing in the High Court in mid January 2026, the court determined that the law is clear on the point. In short, each executor has the full power on their own to administer the estate. The law and authorities that we relied upon, and which the court agreed with, included:
- Notably, a case that former colleagues before me had ironically been involved in. That was Birdseye v Roythorne & Co [2015] EWHC 1003 (Ch). In that case, Mr Justice Newey confirmed that the requirement for trustees to act collectively did not extend in the same fashion to executors. One executor alone could act, and had power to act.
- The strict wording of rule 27, and the absence of a requirement for consent.
- The availability to a second executor to obtain a double grant, which is consistent with the proposition that one executor alone can apply for probate alone, with power reserved to another non-consenting executor.
- Tristram & Coote, “Probate Practice”, at paragraph 4.55:
“If several executors are appointed, one or more of them may prove the will without the consent or renunciation of the others, power being reserved to grant probate to them whenever they or any of them apply for the same.”
- Williams, Mortimer & Sunnocks, “Executors, Administrators and Probate”, at paragraph 6.02:
“An executor may be appointed solely, or in conjunction with others. There is no limit on the number of executors that a testator can appoint. However, the court will not make a grant of probate to more than four persons in respect of the same part of the estate of the deceased person.Where there are several executors, all are considered in law as an individual person and, in general, the acts of any one of them, done for the purposes of administration, are deemed to be the acts of all of them. However all proving executors must concur in dealings with interests in land.
Where there are several executors named in the will, one or more of them may prove the will without the consent or renunciation of the others, although notice of any such application must be given to the other named executors pursuant to N-CPR 1987 r.27(1) unless a district judge or registrar dispenses with the need for such notice on the basis it is impracticable or would result in unreasonable delay or expense. Where probate is granted to only one or some of the named executors, power is reserved to grant probate to the other named persons if and when they themselves make such an application. The executors to whom the power is reserved may either during or after the lifetime of the proving executors either renounce probate or apply for a grant of double probate, provided in the latter case that the total number of executors does not exceed four. Section 8 of the Administration of Estates Act 1925 gives the proving executors the right to exercise their powers as if all named persons had concurred.”
We draw a lot of our knowledge in contentious probate work from a variety of sources, and it is impossible to keep on top of them all. Case law in particular changes by the day or week. Editorial textbooks tend to be updated annually. It is always reassuring when you find yourself to be right on a very small technical point that had the propensity to throw you.