Limited Grants

• Author: Karen Nunez-Tesheira
• Pages: 329-359

Limited Grants / 329

INTRODUCTION

A grant of representation may be limited in regard to time, certain property

or to a particular object. When a person is entitled to a general grant he

will not be allowed to obtain a limited grant except by special permission

of the court and then only for very cogent reasons.1 Furthermore, limited

administration is not to be granted unless every person entitled to a general

grant is either dead or has consented/renounced or, where applicable, has

been cited and failed to apply or otherwise under the direction of the

Court.2

RULES OF PRACTICE AND PROCEDURE

As was stated in chapter 1, none of the territories considered in this book,

except Jamaica, with effect from January 1, 2003, has detailed non-

contentious probate rules which prescribe the procedure to be adopted

with respect to applications for limited grants of representation. Accordingly,

the relevant English non-contentious probate rules 1954/1987 are received

and applied in these territories, subject to necessary modifications to local

probate practice and procedure.

POWERS OF REGISTRAR TO GRANT PRELIMINARY

ORDERS

Trinidad & Tobago and Barbados

In accordance with the jurisdiction and powers conferred by law and the

relevant rules of court, the registrars in these territories may grant all such

preliminary orders with respect to the issue of grants of representation

which may be made by a judge in chambers. Accordingly, preliminary

orders other than those which are required by law or the rules of court to

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Limited Grants

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be heard in open court, are granted by the registrar subject to the registrar’s

discretion to direct that any such applications be made to a judge in

chambers or open court.

Eastern Caribbean territories

As was mentioned in the Introduction,3the Eastern Caribbean Rules of

the Supreme Court, 1970, have been repealed and replaced by the Eastern

Caribbean Supreme Court CPR 2000. In this regard, RSC O.47r.5 of the

repealed Supreme Court Rules 1970 conferred on the registrars of these

territories the power to grant applications for probate or administration,

other than those applications in which there is contention, until such

contention is disposed of. In practice, the powers thereby conferred on the

registrar were not exercised in a uniform manner. Although the new CPR

2000, in particular Part 2 Rule 2.5 contains a provision with respect to the

exercise of the powers of the court, inter alia, by the registrar, this provision

does not address the ambit of the powers and duties of the registrar in

respect of non-contentions probate proceedings, nor is there any rule which

so provides in the new CPR 2000. Accordingly, the ambit of the powers,

duty and authority of the registrar in respect of non-contentious probate

matters is deemed to be governed, in the absence of specific rules or statutory

provisions to the contrary, by the general provisions of Rule 2.5, CPR

2000.

To date, attorneys-at-law continue to make applications for preliminary

orders in the first instance to a judge in chambers even in those Eastern

Caribbean territories where the registrar is prepared to make preliminary

orders.

This practice stems partly from the fact that until the passage on April

17, 1971, of the now repealed Eastern Caribbean Rules of the Supreme

Court, the registrars in these territories, save St Lucia,4had no statutory

power to grant probate or administration.

Indeed, all non-contentious probate applications were required to be

made to a judge and all preliminary order applications were made either

by summons to a judge in chambers or by motion to a judge in open

court, as the case may be.

This was essentially the position in England until the passage of the

N.C.P.R. 1954. These rules conferred on the registrar the powers to deal

with matters which were previously the reserve of judges.

In this regard, the non-inclusion of specific non-contentious probate

rules in the CPR Rules 2000 has not assisted in clarifying the position.