Adverse possession and estate administration: insights from Nazir v Begum
Adverse possession has been an important – and often emotive – subject for agricultural and rural landowners for many years. Many agricultural estates include inherited land passed from one generation to the next (whether in accordance with a will or on intestacy) or land held in trust. Conventional trusts of land can (in some circumstances) prevent a squatter from successfully advancing an adverse possession claim. But what about adverse possession of land held by personal representatives during estate administration?
This week’s Field Notes considers an important recent decision in which the Court of Appeal answers that question, in particular confirming that the “statutory trust” which arises during the administration of an intestate estate is not a trust capable of preventing adverse possession. This decision, in Nazir v Begum [2025] EWCA Civ 587, has significant implications for estate administration on intestacy and, depending on the facts, when there is a will. Whether administering an estate in accordance with a will or on intestacy, Nazir v Begum is a stark reminder of why it is so important to keep a close eye on the land and assets of those who have passed away.
What happened in the Nazir v Begum case?
The case centres on a piece of registered land owned by Mr Nazir who died intestate in 2010. It wasn’t until 2019 that two of his children obtained a grant of letters of administration, a full 9 years later. The disputed land had been occupied by Mr Nazir’s neighbour, Mrs Begum, without permission for over 10 years. When the children brought possession proceedings, Mrs Begum asserted that she had successfully adversely possessed the land and was now entitled to have the land registered in her own name.
Amongst other arguments, the children claimed that the statutory trust that arose over Mr Nazir’s estate pursuant to section 33 of the Administration of Estates Act 1925 prevented anyone adversely possessing the disputed land. The High Court rejected this argument (which hadn’t been run in the original trial in the County Court) and upheld the decision of the lower court. The children then brought a second appeal to the Court of Appeal.
What did the Court of Appeal decide?
The Court of Appeal agreed with the High Court and held that the statutory trust that arises in an estate administration context is not a trust in the conventional sense and – critically for this case – isn’t the type of trust that prevents adverse possession.
The statutory trust primarily establishes a mechanism by which the personal representatives owe what are known as fiduciary duties (special duties arising out of specific relationships involving trust and confidence, including a duty to act in good faith) to beneficiaries of the estate whilst it is being administered. The statutory trust lacks the requirements of a conventional trust. It does not involve a separation of legal and beneficial interests between the personal representatives and someone else. It lacks identified beneficiaries until the land is assented to the relevant estate beneficiaries on completion of the estate administration and it also lacks an identified trust fund, which is not known until the administration of the estate is complete.
In following the children’s logic through to different scenarios (where there is a will, where there is not, and the timing of a grant), the Court of Appeal considered that it would lead to anomalous results and was not in keeping with the purpose of adverse possession legislation, which is to ensure that land is productively used and not neglected or abandoned.
In addition to statutory trusts arising on intestacy, like in Nazir, the Court of Appeal’s judgment is also likely to apply in the context of the “executor’s trust” that can arise by operation of law as part of the machinery for estate administration, particularly where a will does not contain any express trust.
What should personal representatives learn from Nazir v Begum?
This decision is a useful reminder that personal representatives should:
- act swiftly to administer estates
- remain vigilant about land and assets within the estate, including who is using them
- consider taking practical steps like inspecting the land and checking boundaries, especially if there is a concern that land is currently being occupied without permission
- take advice promptly to prevent the inadvertent loss of land to an adverse possessor.
Field Notes is Charles Russell Speechlys’ weekly agricultural law blog, sharing plain-English insight into the legal and policy issues affecting agriculture, agricultural land and rural business life. From hints and tips on avoiding agricultural disputes, pitfalls to keep an eye out when planning for tenancy or family agri-business succession, to the latest agricultural legislative or policy changes and the most interesting farm-related court decisions, Field Notes makes the complex more understandable, always grounded in the realities of life on (and off) the land.
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