Grants of Letters of Administration Preliminary Considerations

• Author: Karen Nunez-Tesheira
• Pages: 160-190

160 / Probate Practice and Procedure

INTRODUCTION

Grants of letters of administration are issued in circumstances in which:

(a) The deceased died wholly intestate. This eventuality may arise

because the deceased never made a will or any will made is invalid

owing, amongst other causes, to a want of formalities or testamentary

capacity or because all wills made have been revoked without effective

replacement.1

(b) The deceased made a will appointing no executor and disposing

only of foreign property, but leaving some estate within the

jurisdiction where he died domiciled.

HISTORY OF INTESTATE SUCCESSION IN THE CARIBBEAN

— AN OVERVIEW

Succession to personalty

All jurisdictions (save St Lucia and Guyana)

Historically, succession to the personal estate of an intestate was governed

by the Statute of Distributions 1670, England. This statute was eventually

repealed and replaced in England with effect from 1st January 1926 by

the Administration of Estates Act 1925, the provisions of which not only

created new rules of distribution with respect to an intestate’s residuary

estate but most significantly assimilated the residuary real and personal

estate of an intestate for the purposes of such distribution.

Between the late 1930s to the early 1950s, the Eastern Caribbean

territories2 (with the exception of St Lucia) and more recently, with effect

from February 1, 2002 the Bahamas,3 followed suit and enacted similar

intestate legislation which:

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Grants of Letters of Administration

Preliminary Considerations

Letters of Administration / 161

•declared that the Statute of Distributions would cease to have

effect;

•assimilated the residuary real and personal estate of an intestate

for the purposes of such distribution; and

•created new rules of distribution with respect to an intestate’s

residuary estate.

Jamaica also enacted similar provisions with the passage on 1st June, 1937

of the Intestates’ Estates and Property Charges Ordinance Cap. 166. In

Barbados, however, as late as November 1975, the distribution of the

residuary personal estate of an intestate was governed by indigenous

legislation the Administration of Estates Ordinance 1891, s. 19 of which

was in fact a replica of the provisions contained in the Statute of Distributions

1670, albeit expressed in modern English, while s.20 thereof was a replica

of the 1809 Intestate Children’s Act, England.

Although this Ordinance has not been repealed in its entirety, all the

provisions relating to the distribution of an intestate’s personal estate were

repealed and replaced in 1975 by the new provisions contained in the

Succession Act Cap. 249. Part VI of this Act not only created new rules of

distribution but also assimilated the personalty and realty of an intestate

for the purposes of such distribution.

The history of intestate succession in Trinidad & Tobago is somewhat

more convoluted. This is primarily as a consequence of a series of Ordinances

which were enacted in 1902 (and which became law on 1st January, 1903),

most notable of which were the Wills and Probate Ordinance No. 99; The

Property Devolution Ordinance No. 101; The Distributions Ordinance

No. 102 and the Administrator General’s Ordinance No. 103.

Most significantly ss.2 and 5 of the Distributions Ordinance assimilated

both the residuary personal and real estate of an intestate for the purposes

of distribution on an intestacy. Thus in a sense, Trinidad & Tobago was a

forerunner to England, which did not assimilate the real and personal

estate of an intestate until 1st January, 1926 (with the passage of the

Administration of Estates Act 1925).

However according to s.5 of the Distribution Ordinance this residuary

estate was to be distributed in the same manner and in the same proportions

as the personal estate of such person dying domiciled in England and

intestate would be distributed by the law of England. The law of England

at that time, in so far as the personal estate of an intestate was concerned,

was governed by a piece of legislation dating back to 1670 - The Statute of

Distribution.

The Distribution Ordinance (which was amended in 1912) together

with The Property Devolution Ordinance No. 101, and the Administrator