Transfer to executor is not permissible

Conveyancing practitioners regularly ask how to modify electronic transfer instruments to record that the transferee is acquiring title as an executor.

Practitioners sometimes attempt to achieve this by modifying transferees' names to include the words 'as executor'.

For transfers, it has never been acceptable to describe transferees as executors (except when necessary for a boundary adjustment or to comply with an amalgamation condition). A transferee described 'as executor' implies the transferee holds the land on trust, and that would contravene the prohibition against entering notices of trusts in the register in section 153 of the Land Transfer Act 2017 (LTA). If the transferee contends they are not a trustee, then the information that they are an executor is not necessary for the purposes of registration under the LTA and the Registrar-General of Land will not allow it to be entered in the register.

Accordingly, Landonline does not provide for users to describe a transferee 'as executor'. If a practitioner manages to cause a transferee to be described as an executor in a transfer instrument then LINZ may reject the instrument or require the register to be amended to remove the description 'as executor'.

Transmissions are different. It is necessary for the applicants in transmissions to state that they have acquired as executors, or survivors etc, to demonstrate their entitlement to be registered as owners. Therefore Landonline provides for that information to be included in an electronic transmission. This does not contravene the prohibition in section 153 LTA or the previous section 128 of the Land Transfer Act 1952 - Adams (Adams' Land Transfer, LexisNexis, s128.3 referring to the previous section 128) observes that:

"a statement in the memorial of a transmission that the transmittee holds as executor, or administrator, is not a disclosure of a trust; it merely shows that the registered proprietor holds in a representative capacity."

Last Updated: 12 November 2018