Limited Grants cont'd

• Author: Karen Nunez-Tesheira
• Pages: 360-383

360 / Probate Practice and Procedure

GRANTS DURANTE ABSENTIA1

As a general rule if after the expiration of six months (Trinidad & Tobago)

or 12 months, (the other jurisdictions) from the date of death of any person,

the personal representative to whom representation has been granted, is

residing out of the jurisdiction of the court, the court may, on the application

of the Administrator General (in the case of Trinidad & Tobago) or any

creditor or person having a beneficial interest in the deceased’s estate, grant

a special administration of the estate of the deceased, such administration

to be limited during the absence of such person.

Trinidad & Tobago

Pursuant to s.35(1) of the Wills and Probate Ordinance Ch. 8 No. 2,

applications for grants durante absentia are limited to instances where the

executor is residing out of the jurisdiction of the court and has been so

resident for a period of six months or more from the date of the death of

the deceased.

Eastern Caribbean territories (save St Lucia)

In contrast to the Judicature Act 1925, and the N.C.P.R. 1954, England,

the Supreme Court Act 1981 and the N.C.P.R. 1987, England contain no

provision with respect to grants durante absentia.

Grants durante absentia may no longer be applicable to the Eastern

Caribbean territories mentioned above including Dominica, which is in a

somewhat anomalous position as it receives the N.C.P.R. 1954, England

but not the Judicature Act 1925 on which the procedural law contained in

the N.C.P.R. 1954 is based.

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Limited Grants cont’d

Limited Grants cont’d / 361

Jamaica

The CPR 2002, in particular Rule 68, contains no provision with respect

to grants durante absentia. Additionally the indigenous probate legislation

contains no provision with respect to applications for such grants. This

type of grant is therefore not applicable to Jamaica.

Discretionary Grants- Alternative

All jurisdictions (save Jamaica)

As an alternative to grants durante absentia an application may be made for

a grant under the discretionary powers of the court as is now the practice

in England.

Grants Durante Absentia

Practice and Procedure for Preliminary Order

The application for a grant durante absentia is made to the court on motion.

A notice of the intended application is required to be sent to the postal

address of the grantee and may also have to be given to any person with a

prior right to the grant.

The application for the grant is made under the relevant statutory

provision of the respective territories and is usually limited until the absentee

personal representative returns to the jurisdiction of the court.

The application and the affidavit in support should be intituled inter

alia In the Matter of the Estate of the Deceased named therein and In the

Matter of the relevant statutory provision of the respective territories.

Contents of Affidavit in Support

The affidavit should recite inter alia:

(i) The date and place of death of the deceased;

(ii) that 6/12 months or whatever longer period have elapsed since

the date of death of the deceased;

(iii) that the person to whom the grant has been made is to the

knowledge and information of the applicant residing out of

the jurisdiction and has to date failed or neglected to

administer the deceased’s estate within the time prescribed;

(iv) that a notice in writing of the intended application was posted