PAS FAQ: Receipts for a pecuniary legacy to a minor

I act for lay executors in the administration of an estate where the will was drafted by another firm. There is a pecuniary legacy to the testator’s niece, who is only 15 years old. Can the niece give good receipt?

Because minors under 18 years of age cannot give a valid receipt, the personal representatives (PR) will need to consider who can give a good receipt on their behalf. First, look at the will to see whether it authorises parents or guardians to give a good receipt on behalf of the minor or whether it authorises the minor to give a good receipt at a specified age (usually 16).

In the absence of such a provision, it previously was not possible for PRs to accept a receipt from parents or guardians on behalf of the minor. However, as a result of the Children Act 1989, all parents with parental responsibility have the same rights, powers and duties as guardians appointed under Children Act 1989, section 5. These rights are set out in section 3 and include (emphasis added)

‘The right of the guardian to receive or recover in his own name, for the benefit of thechild, property of whatever description and wherever situated which the child is entitled to receive or recover.’

The words in italic indicate that the parent or guardian will hold the property in a fiduciary capacity.

It is, however, always helpful for the avoidance of doubt to include an express provision. The testator may not wish the parent or guardian to give a receipt, in which case it is sensible to make the legacy contingent upon reaching 18 and appoint a trustee to hold the funds until that date.

For further information, please see the Law Society’s Probate Practitioner’s Handbook (9^th edition).