Grants of letters of Administration with Will Annexed

• Author: Karen Nunez-Tesheira
• Pages: 126-159

126 / Probate Practice and Procedure

INTRODUCTION

Grants of letters of administration with will annexed, as is the case with

other grants of representation, are issued to a maximum of four persons1in

circumstances:

(a) where no executor is appointed;

(b) where the executor appointed has died in the lifetime of the testator

or has survived the testator but has died without proving the will;

(c) where the executor has renounced probate or has been cited to accept

or refuse probate and has not appeared;

(d) when the appointment of an executor is void by reason of uncertainty

as to his identity;

(e) when the appointment of an executor in the will is not in the English

language and there is no person named who by the terms of the will

could be regarded as an executor according to tenor.

Limited special or second grants of letters of administration with will

annexed may also be granted inter alia:

(a) in certain circumstances where the court exercises its discretion and

passes over an executor;

(b) when the executor is unable to take out probate through some

disability, for example because he is a minor or because he may be

incapable of managing his affairs; or

(c) where the executor appointed is out of the jurisdiction and a grant is

to be made to his attorney.

This chapter will focus on general grants of letters of administration with

will annexed and the relevant procedure and practice. The various types of

special, second, or limited grants of letters of administration with or without

will annexed will be considered in chapters 16, 17, 18 and 19.

6

Grants of Letters of

Administration with

Will Annexed

Letters of Administration with Will Annexed / 127

ORDER OF PRIORITY OF RIGHT TO GRANT LETTERS OF

ADMINISTRATION WITH WILL ANNEXED.

Unlike probate grants, the personal representatives of a testator’s estate in

cases of letters of administration with will annexed are appointed by the

court, not the testator. In making this appointment, the courts of the

various Caribbean territories apply the relevant non-contentious probate

rules and/or statutory provisions for the purposes of determining entitlement

to the grant, and the order of priority with respect thereto.

Barbados and Guyana

Although,

(a) s.16 of the Deceased Persons Estates’ Administration Act Cap. 12:01,

Guyana, and

(b) s.19 of the Succession Act Cap. 249, Barbados give the courts of

these territories, the discretion as to whom administration is granted,

the practice in these territories, is to observe the order of priority

with respect to entitlement to a grant of letters of administration

with will annexed as set out in r.19 of the Non-contentious Probate

Rules 1954, England, with necessary modifications to local probate

law and practice.

By way of illustration, in determining priorities with respect to entitlement

to grant of letters of administration with will annexed, the registrar may

take into account the size and nature of the benefit conferred on the

individual beneficiary. As such, beneficiaries enjoying a substantially large

share of the deceased’s estate may be permitted in the appropriate case to

apply in priority, irrespective of his other classification under r. 19 of N.C.P.R.

1954, England.

In this regard rule 19 contains the following order of priority, inter alia:

(a) the executor;

(b) any residuary legatee or devisee holding in trust for any other person;

(c) any residuary legatee or devisee for life;

(d) the ultimate residuary legatee or devisee or, where the residue is not

wholly disposed of by the will, any person entitled to share in the

residue not so disposed or, subject to paragraph (3) or rule 25, the

personal representative of any such persons.

128 / Probate Practice and Procedure

Jamaica

According to s.12 of the Intestates’ Estates and Property Charges Act2

unless the court is satisfied that it would be for the benefit of the estate

that the grant should be made to some other person, it is the duty of the

Administrator General to take out letters of administration with will annexed.

This is irrespective of whether the beneficiaries are all adults and are in

agreement, or whether one or some of the beneficiaries is/are minor(s).

On or before December 31, 2002

(a) Formal Consent of the Administrator General

Prior to the passage of the Supreme Court of Jamaica CPR 2002, in

particular Rule 68 thereof, the Administrator General in the appropriate

case, issued a Formal Consent With The Will Annexed to the beneficiaries

under the testator’s will indicating that he would not oppose the grant in

their favour even where one or some of the beneficiaries was/were minor(s).

The Formal Consent in effect provided the intended grantee(s) with

the requisite authority to apply for the grant. Accordingly it had to be

obtained prior to the filing of the papers to lead the grant.

To obtain the Formal Consent of the Administrator General, the

following documents were required to be submitted to the Administrator

General:

(1) the Declaration of Particulars3

(2) the original oath of the intended grantee, duly executed;

(3) the original will/codicil of the testator;

(4) the written consent(s) of the adults beneficiaries who were in

agreement to one or more of them applying for the grant4and

(5) where applicable, copies of the notices5of the intended application

served on the beneficiaries who have not given their consent to

the application being made by the applicant.

Once the Administrator General was satisfied therewith, he issued the

Formal Consent With The Will Annexed which had to be filed with the

papers to lead the grant.

It should be pointed out at the outset that the issuance of the Formal

Consent by the Administrator General was a matter of discretion. However,

as a general rule, the Administrator General issued the Formal Consent to

the beneficiaries where all the adult beneficiaries were in agreement and

had given their written consent to one or more of them applying for the