2 More than one application
(a)General rule
8.06 Where more than one close relative applies for succession, section 39(3) requires the tribunal to determine the eligibility and suitability of each as if s/he were the only applicant.
If only one application is made, and the applicant is found by the tribunal to be both eligible and suitable, then the tribunal must make a direction entitling him to a tenancy of the holding.17 Where more than one application is made, however, and the respective applicants are found to be both ‘eligible’ and ‘suitable’ for succession, then the tribunal must determine which of the applicants is the most suitable person to become tenant of the holding and make a direction in his favour accordingly.18 The general rule, then, is that only one successor can take a tenancy by succession. Section 39(9) gives the tribunal power, however, to make an order entitling more than one applicant to take a joint tenancy of the holding, but only where the landlord consents. Clearly, where a joint tenancy is granted by way of succession, this will potentially extend the duration of the succession tenancy to the landlord’s detriment. Whether there is one applicant, or multiple applications, the tribunal must in all cases give the landlord an opportunity to state his views as to the suitability of the applicant(s) before making a direction.19 The landlord’s views are not, however, binding on the tribunal (although they may be of persuasive force). The maximum number of applicants to whom a joint tenancy can be awarded, with the landlord’s consent, is four.(b)Designation by will or codicil
8.07 Special rules apply where the deceased tenant has validly designated a person he wishes to succeed to the tenancy by will or codicil. Where more than one application for succession has been made, the tribunal must first make a determination as to the eligibility and suitability of the designated successor.20 If the latter is found to be ‘eligible’ and ‘suitable’, s/he will be awarded a direction entitling him or her to a tenancy of the holding.
The tribunal can only go on to consider the eligibility and suitability of other applicants if the designated successor is not found to be an eligible or a suitable applicant for succession.218.08 For these purposes, a designation can be made either by will or codicil, but only if the latter is the subject of a grant of probate or administration. A designation will only be valid if either:22
(i)The will or codicil contains an effective specific bequest to the named successor of the deceased’s tenancy of the holding; or
(ii)In the absence of a specific bequest, it contains ‘a statement specifically mentioning the holding or the deceased’s tenancy of the holding, and exclusively designating that person (in whatever words, and whether by name or description) as the person whom the deceased wishes to succeed him as tenant of the holding’. If the will contains a statement designating different persons in different circumstances, this requirement is satisfied if, in the events that have happened, the statement exclusively designates a particular person to succeed to the tenancy.23
8.09 Once a tribunal direction in favour of a designated successor has been made, it is immaterial that the probate or administration of the deceased’s will or codicil is subsequently revoked or varied.24