In common law, a personal representative has no power to grant an option to purchase property comprised in an estate, unless such power is conferred by the terms of a will. We recommend, therefore, that, subject to certain limitations, the Wills Act be amended so as to provide that where any power to sell real property is imposed or conferred upon a personal representative by the terms of a will, such authority should, in the absence of contrary intention, carry with it the ancillary power to grant an option.
We also suggest four limitations. First, that the amendments be limited to real property only. Second, that no options should be granted for a term exceeding one year. Third, that where a personal representative seeks to exercise the power to grant an option in circumstances that fall within section 11 or 12 of the Devolution of Real Property Act (where the power is exercised for distribution only, or where an infant is interested in the property), the same restrictions as are currently imposed by those sections should remain in force. Finally, suggested amendments contained in this report should not apply to inter vivos trusts