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LA303 - Equity, Trusts and Succession 2 - Topic 11
GRANTS OF ADMINISTRATION
In this Unit we will look at the nature of the grants of administration which can be made by the probate courts. The term grant of administration can mean either a grant of probate where there is a will. Or it can mean a grant of letters of administration, where there is an intestacy. You will recall that a grant of probate is appropriate where there is a valid will which disposes of the whole of the estate of the testator. This does not cover all cases. Sometimes there might be a will which disposes of part only of the property of the deceased person. In cases such as this what is appropriate is a grant of letters of administration with the will annexed. You will recall that these types of grant are called letters of administration cum testamento annexo (or c.t.a. for short)
We will look at the jurisdiction for the courts making these grants. We will also look at the different types of grants which can be made in a particular estate. Those mentioned above are the general types. There can be numerous others which are tailored to special situations which can arise in the estate. We will also examine some of the procedural aspects of applying for grants.
At the conclusion of this Unit you will
- Know the basis upon which courts exercise jurisdiction with respect to the administration of deceased estates
- Understand the different types of grant which can be made
- Understand the basic procedures for applying for a grant of probate or letters of administration and the factors which must be proved
- Be familiar with the differences between probate in solemn form and probate in common form
- Understand the notion of resealing of a grant of probate
The jurisdiction for dealing with the administration of deceased estates is generally conferred on the superior courts in the South pacific countries. See, for example, in Fiji, section 3 of the Succession, Probate and Administration Act Cap. 60 This vests jurisdiction in contentious and non-contentious probate matters and proceedings in granting or revoking probate and the administration of estates of persons dying leaving property in Fiji in the Supreme Court (now High Court). There are similar examples in the other jurisdictions. In some jurisdictions such as the Solomon Islands magistrate's courts have jurisdiction with respect to deceased estate matters, such as making of family provision orders. But in general the jurisdiction is vested in the superior courts. Find now the statutory provision which applies in your own country.
Note that the Fiji example would include jurisdiction to do things like :
- Making grants of administration
- Deciding which of several documents constitutes a valid will of the deceased
- Resolving disputes about whether a will is valid or has met the formal requirements for making a will
- Deciding whether a will was validly made in terms of the substantive requirements
- Deciding whether someone should be appointed as executor or administrator (often this is contested on various grounds)
- Determining whether a will has been validly revoked or not
- Resolving disputes relating to the administration of the estate by a legal personal representative. Note provision such as section 40(1) of the Succession Probate and Administration Act of Fiji which is as follows :
40. (1) The court may make such order with reference to any question arising in respect of any will or administration, or with reference to the distribution or application of any real or personal estate which an executor or administrator may have in hand, or as to the residue of the estate, as the circumstances of the case may require.
(2) Such order shall bind all persons whether sui juris or not.
(3) No final order for distribution shall be made except upon notice to all the parties interested, or as the court may direct.
- Resolving disputes about the construction of a will (as we have seen this was once largely the province of the equity courts but in these jurisdictions it is merged because of the unified court structure)
- Resealing of grants of probate made in another jurisdiction. Administration of the estate cannot formally proceed until the court in the local jurisdiction has made a grant even though there might have been a grant in another jurisdiction already.
Note the specific legislative provisions which exist in the text.
Normally it is the case that the jurisdiction of the court is based on proof of the following facts
- that the deceased is dead
- that the deceased left property in the jurisdiction in which the grant is sought
The second requirement is dispensed with in some jurisdictions. In Samoa, for example, the following provision applies :
"5. (1) The Supreme Court shall continue to have jurisdiction and authority in relation to the granting and revoking of probate of wills and letters of administration with or without the will annexed of the estates of deceased persons, and in regard to the hearing and determination of proceedings relating to testamentary matters and matters relating to the estates of deceased persons.
(2) Without restricting sub-section (1) of this section or any other enactment, the Court shall have jurisdiction to make a grant of probate or letters of administration in respect of a deceased person, whether or not the deceased left any estate in Western Samoa or elsewhere, and whether or not the person to whom the grant is made is in Western Samoa."
Subsection (2) clearly dispenses with the need to show that there is property in Samoa.
Study Task 1
Suppose that a near relative of yours has died and you think that you might be that person's closest relative. What steps do you think that you would need to take in relation to the administration of his or her estate. Write out a list now.
Click here for Hint 1.
Study Task 2
Let us assume that a will has been found. The nearest relative is named as the executor. The will is effective to dispose of the whole of the property of the deceased. This time you are the lawyer for the nearest relative. What do you have to do? Write a list of what you think might be required. It might be just guesswork on your part but give it a go. Then compare it with the following.
Click here for Hint 2.
Types of Grants
There are three types of general administration grants. These are :
- Grant of probate
- Grant of letters of administration
- Grant of letters of administration with the will annexed
But special types of grant can also be made by the court where the circumstances warrant it. Grants can be limited in terms of time or place or with respect to the assets over which the legal personal representative is to have administrative control. The of special grants are know by particular names in certain circumstances. With the assistance of the text you should identify the special forms of grant which are commonly know. You should try to understand the following :
- A grant pendente lite
- A grant ad litem
- A grant during infancy of the executor
- A grant during incapacity
- A grant during absence
- A grant colligenda bona
- A grant de bonis non
- A cessate grant
- Grant limited to specific property
The legislation often makes specific provision for these special types of grant. But they are assumed to be within the common law jurisdiction of the court in any event. Identify the appropriate sections in your own country which correspond with these.
Applications for Grants of Probate
There are two different types of application for probate or administration. These are :
- Application in common form
- Application in solemn form
Remember this. Applications in common form are the most common!! These are undisputed applications and clearly these are the norm. They are dealt with by the court largely as administrative matters. The grant is most usually made by the Registrar or equivalent official on proof of certain matters by affidavit rather than by evidence in open court.
An application in solemn for is appropriate where there is some dispute either as to the validity of a will or the right of the applicant to be appointed as executor or administrator of the estate, as the case may be. This form requires a hearing before open court on the application and the hearing of evidence much like a normal court case. A dispute might arise after an application in common form has been made. In such cases, the Registrar has power to order that the matter proceed as an application in solemn form. This might happen even where there is no dispute between parties. There might be something arising out of the estate which the Registrar considers ought to be dealt with in open court. He/she can refer the matter to be dealt with accordingly.
Applications in Common Form
Generally an application in common form requires proof of the following matters by affidavit. There can be some variation between the jurisdictions on these issues. We will deal here with the general approach to give you some idea of what is required. This is not a course on civil procedure but it is appropriate that you understand the general nature of the process. Applications of this nature assume there is no dispute regarding validity. They are made by motion and supporting affidavit evidence. The matters are :
Where there is an application for probate of a will
Proof of the will, usually by lodgment of the will plus an affidavit identifying the signature Attestation and subscription of the will - usually by an attesting witness. If the will appears to have been properly attested then sometimes the court will presume proper attestation Proof of publication of notice of an intention to apply for probate which is usually required by the court rules to be in the local press Proof of death of the deceased. Note that sometimes there is a presumption of death where a person has been missing without trace for seven years. An undertaking by the executor to administer the estate according to law and to file accounts of his or her administration usually within twelve months after the grant is made. Proof of the estate left by the deceased person. This will usually be made by the executor(s) and reinforces the need for an executor to make a full inquiry as to the assets of the deceased immediately after death and to take control of what assets there are. Where the country imposes death duty on the value of the deceased's property the value of the assets at the date of death will also need to be established. In those countries where there is a death duty regime it is normal that the assets of the deceased are frozen until such time as the duty is paid. However permission can be given by the appropriate authority to release certain assets for the purpose of allowing them to be cashed in for the purpose of paying the duty.
Applications for letters of administration follow a similar pattern, although with obvious exceptions. In addition, however, the applicant for administration must normally also lodge an administration bond (from an insurance company) providing a surety that the duties of administration will be properly carried out.
Application in Solemn Form
Applications in solemn form come about in a number of ways:
- When a person publishes a notice of the fact that they are intending to apply for probate or administration, a person who disputes the application is put on notice that they have to contest it. What they are permitted to do is to lodge a caveat against the granting of probate of the will or the making of a grant to the particular individual. 'Caveat' comes from a Latin word which means (Let it be forbidden). The effect of the caveat is to prevent the making of a grant to the person proposal to apply. When the application is made by the applicant it has to be referred to the open court for determination. The applicant is required to give notice to show causes why the caveat should not be removed and this sets up the procedure for the hearing. The parties are then involved in an open dispute. It should be noted also that an application for proof of the will in solemn form can be required even after a grant has been made in common form. The court is asked to revoke the grant previously made and to require that proof be established in common form. As to the power of the court to revoke a grant already made, you will find appropriate provisions in the legislation.
- When an application is made in common form the Registrar might conclude that there are suspicions regarding the matter which ought to be determined by the court. For example, there might be doubts about whether the will was properly signed by the testator. Or it might be impossible to prove that the will was properly witnessed. The will itself might raise suspicions about whether it was signed by a free and capable testator. The Registrar can then refer the matter to open court.
- Then executor or administrator might decide at the outset to make an application in solemn form rather than common form - where, for example, it is clear that there is no straightforward proof available by affidavit on a particular matter or where it is obvious that there will be a dispute. It might be that there is some real question about the validity of the will in question. It is often used in fact for applications for probate of a lost will. Note that even though the will is lost this does not prevent probate being granted of it using secondary evidence to prove its existence and its content.
In the case of (a) a caveat can only be lodged by a person who has a beneficial interest which is adverse to the making of the grant. This would include the following :
- a person who has a beneficial interest under a previous will
- a person entitled under the rules of intestacy - where a will is being put forward for probate
- a beneficiary under the current will
- an executor under a previous will
The slightest interest in the estate is sufficient. Mere expectancy of an interest would generally be enough. It might include the interest of a person who is the assignor or the assignee of an interest under the will. It would not include a creditor however, as a creditor's claim is for payment out of the estate regardless of the issues which might have arisen regarding the grant.
A grant of probate in common form can be set aside where, for example one person has not had a reasonable opportunity to oppose the grant or a later will is discovered. A grant made after an application in solemn form is more difficult to set aside. It can be where it was obtained by fraud or a later will is subsequently discovered or where a person can show that through some unavoidability they were not able to participate in the proceedings.
Hughes - Chapter 11
- What is the difference between an application in common form and an application in solemn form?
- Who can require that an application is made in solemn form?
- What are the two common bases upon which a court exercises jurisdiction in the making of a grant?
- What types of special grant are possible in relation to an application for a grant of administration?
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