INTRODUCTION TO

PROBATE
LECTURE 3
 APPLICATION FOR
GRANT OF ADMINISTRATION
WITH WILL ANNEXED
These grants are issued in circumstances where a testator has died leaving a perfectly valid
will but has either failed to appoint an executor of any kind or the executor so appointed is
unwilling or unable to act. Depending on the circumstances such grants may be either general
or limited in scope and they are issued in the following circumstances:
•when no executor is appointed.
• when the appointed executor has died in the lifetime of the testator or has survived the
testator and died without proving the will.
• when the executor has renounced probate or has been cited to accept or refuse probate and
has not appeared.
 APPLICATION FOR
GRANT OF ADMINISTRATION
WITH WILL ANNEXED
• when the appointment of an executor is void by reason of uncertainty as to his identity.
• in certain circumstances when the court exercises its discretion and passes over an executor.
• when the executor is unable to take out probate through some disability, for example,
because he is a minor or may be incapable of managing his affairs;
• Where the executor appointed is out of the jurisdiction and a grant is to be made to his
attorney
• 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 the tenor.
 APPLICATION FOR
GRANT OF ADMINISTRATION
WITH WILL ANNEXED
 Only Executor can apply for Probate.
 If Will exists, but no Executor or Executor renounces – then application can be made
under CPR 68.8 for grant of admin with Will Annexed.
 The Grant of Letters of Administration with Will Annexed to be signed by the Registrar.
 The same steps to administer the estate for a Grant of Probate is the same steps used to
administer the estate for a Grant of Administration with Will Annexed.
 APPLICATION FOR
GRANT OF ADMINISTRATION
WITH WILL ANNEXED
 Documents to be filed –
• Oath of Administrator;
• Copy of advertisements – CPR 68.35;
• Certificate of Administrator General;
• Will to be “marked”. The Civil Procedure Rules in Jamaica provides examples of marking clauses for both an attesting witness
and an Administrator.
• Death certificate or an Affidavit in Proof of Death (stating, inter alia, that affiant went to funeral, saw body interred etc.;
• Draft Grant;
• Affidavit of Delay (CPR 68.22 – after 3 years of the death of testator);
• Affidavit of Due Execution (or Affidavit of Attesting witness in other jurisdiction) – attesting to the execution of the Will by
testator and attesting witnesses;
• Affidavit as to handwriting (to buttress the Affidavit of Due Execution): if the Registrar has any issue with, inter alia, the
execution of the Will or any clause thereof, especially if there is a handwritten amendment.
• Affidavit as to Plight and Condition : generally required to explain the physical state of the Will (staple marks, tearing etc.)
• Deed of Renunciation: if executor renounces his duty. It must be recorded at island records office.
• Death certificate for Executor.
 PROBATE

 Probate
A probate is a document granted through the Supreme Court or the Parish Court
certifying that a will is valid and authorizing the executor(s) to administer the estate
of the deceased person.
 The Probate Process in the
Supreme Court

 First Question – What is the value of the estate at the time of the deceased’s death?
 If Over $3m – Process Will Be In The Supreme Court
 If Under $3m - Process Will Be In The Parish Court
 Two types of Probate Proceedings:
 Non-contentious Probate Proceedings – No Challenge To Will Or Claim On Estate By Third
Party.
 Contentious – Will Being Challenged.
 PROBATE PROCESS

 PART 68.7 OF THE CPR 2002 – Application for Grant of Probate by Executor(s)
 Application to be made at the Supreme Court. The Grant of Probate is to be signed by the Registrar or other
appropriate Court officer.
 Documents to be filed –
• Oath of Executor;
• Will; to be “marked”. The Civil Procedure Rules in Jamaica provides examples of marking clausing for both an attesting witness
and an executor.
• Death certificate or an Affidavit in Proof of Death (stating, inter alia, that affiant went to funeral, saw body interred etc.;
• Draft Grant;
• Affidavit of Delay (CPR 68.22 – after 3 years of the death of testator);
• Affidavit of Due Execution (or Affidavit of Attesting witness in other jurisdiction);
• Affidavit as to handwriting (to buttress the Affidavit of Due Execution): if the Registrar has any issue with, inter alia, the
execution of the Will or any clause thereof, especially if there is a handwritten amendment.
• Deed of Renunciation: if one executor renounces his duty.
• Affidavit as to Plight and Condition : generally required to explain the physical state of the Will (staple marks, tearing etc.)
 PPROBATE PROCESS
 STEP-BY-STEP GUIDE
a. Get the relevant particulars from client regarding his/her address etc.
b. Peruse the will to ensure that it is valid. Copy it and secure the original in an envelope. Avoid stapling etc.
c. Ensure that deceased is dead and verify date and place of death. Get proof of death (death certificate, funeral programme etc).
d. Check the deceased’s/testator’s name on the will and confirm it with his birth certificate and/or passport.
e. Get details of, and check the title documents for, properties in the estate to confirm the deceased is actually the owner.
f. Obtain valuations re the properties in the estate, particularly the ones on which duties/taxes are payable. Get details of assets
and liabilities (including funeral expenses, mortgages etc). Proof of these liabilities is recommended.
g. Confirm correct names, addresses and occupations of executor(s) and attesting witness(es). Are they literate? If not, the
Affidavits, Oath etc. to be signed by them will have to have a special signing clause.
h. Complete documents. Have same stamped and filed in registry. Keep a complete (completed!) set for your file.
i. Submit the documents (application) with cover letter and have filing acknowledged by court/registry clerk/official.
j. Note application (suit) number on your file copies.
 PPROBATE PROCESS

k. Advertise the application (if required).

l. Collect provisionally- approved grant, upstamp (where required) and re-lodge.
m. Obtain required number of certified copies of grant and advertise for creditors.
n. Complete Revenue documents (for example, Revenue Affidavit in Jamaica under the Transfer Tax Act) if not
previously done and submit to revenue authorities with copy of grant and will, death certificate, valuation, proof
of liabilities, Oath and certificate of title.
o. (If not already done) collect (outstanding) property comprising the estate.
p. Pay duties or taxes and obtain proof of such payment.
q. Discharge other liabilities (including executor’s commission).
r. Distribute the estate.
s. File account re administration. See, for example, s. 6 of Trustees, Attorneys and Executors (Accounts and
General) Act (Jamaica).
 ORDER OF PRIORITY TO APPLY FOR
PROBATE – CPR 68.11

Where the Administrator General is not for whatever reason, applying for the grant the right to
obtain the grant is usually as follows:
Executor (s);
Residuary legatee or devisee with trustee powers;
Any other residuary legatee or devisee for life;
Person entitled to share in undisposed portion of residuary estate including Administrator General
as bona vacantia;
Personal representative of a residuary legatee;
Creditor; and
Personal representative for any other legatee or devisee.
 Administrator General

 The Administrator-General will intervene where one or more of the following circumstances exists:
a) Where a person dies without leaving a Will and a minor is entitled to a share of the estate of the deceased;
b) Where the Administrator-General is appointed the Executor under a valid Will;
c) Where a person dies without leaving a Will and his/her estate consists solely of personalty valued less than One
Hundred Thousand Dollars ($100,000.00);
d) Where the deceased person is not survived by any eligible relatives and the residue of the estate will fall to the
Crown as Bona Vacantia;
e) Where the whereabouts of beneficiaries are unknown;
f) Where a Court order has been issued mandating that the Administrator-General extracts a Grant of
Administration;
g) Where a Court order has been issued appointing the Administrator-General as the trustee (A trustee takes legal
ownership of the assets held by a trust and assumes fiduciary responsibility for managing those assets
and carrying out the purposes of the trust.) for a named person; or
h) Where a Court order has been issued appointing the Administrator-General as the Committee of the estate.
 Administrator General

 INSTRUMENT OF ADMINISTRATION – ADMIN-GENERAL AMENDMENT ACT 2015

• Instrument of administration – section 53d – admin general issues her instrument of administration as
drafted in part 1 of second schedule and publish in the gazette notice of the instrument issued
• The instrument is done in cases where a minor stands to benefit from the intestate’s estate
• Instrument of administration under section 53d has full legal effect as a grant of representation
• Section 53e –a duplicate of the instrument of administration is to be filed with the registrar of the supreme
court by the admin-general 14 days after issued
• Admin-general also to file within 14 days duplicate of instrument of distribution with registrar of supreme
court
• Section 53f – administrator-general is to give notice to s c registrar of her intention to issue instrument of
administration or distribution
• 53f(c) – administrator-general is not to issue instrument of administration if Supreme Court Registrar
advises her 30 days after the administrator-general sends her notice that someone applied to the court
for a grant of representation.
 RENUNCIATION OF PROBATE

 Executor who wishes to renounce can file a Deed of Renunciation (See Rule 68.33) –
Form P. 14 (Also see Doyle v. Blake (1804), 2 Sch. & Lef. 231)
 Certified renunciation is to be filed with the Oath. (See in the Goods of Stiles; re Goods of
Gills)
 Where executor fails to act he can be cited – citation and affidavit supporting citation to
be served on him – CPR 68.41 (see also Re Steven; Mordaunt v. Clarke)
 Citation to be served personally on executor unless Registrar allows otherwise
 HOW TO OPPOSE A GRANT

 CPR 68.38 File a Caution

• Effective for six (6) months;
• Grant cannot be sealed while caution is in effect;
• Cautioner may withdraw the caution;
• Thereafter cautioner is to file fixed date claim form outlining his claim;
• Cautioner must also file affidavit in support of his claim;
• Claim form to be served on executors, trustees, beneficiary; and
• Court may allow party to file a notice to produce documents in his possession.
Also see CPR 68.41 – Opposing a Grant
REASON A GRANT MIGHT BE OPPOSED

 Claim for inheritance under the Inheritance (Provision for Family and Dependents) Act –
section 4
• A child is entitled pursuant to the maintenance act for maintenance up to age 23 – child
includes adopted and en ventre sa mere;
• A spouse is also entitled to maintenance including former wife or husband who has not
remarried;
• Equally parents of a deceased person entitled to maintenance;
• Application for family provision is to be made within six (6) months of grant of probate/
administration.
 ORDERS COURT MAY MAKE

Section 6 of the Inheritance (Provision for Family and Dependents) Act:

Periodical Payments;
Lump Sum Payment;
Transfer of Property to Applicant;
Setting up of Trust Fund;
Property Settlement to the benefit of the Applicant.
 CONSIDERATION OF THE COURT

Section 7 of the Inheritance (Provision for Family and Dependents) Act:

Size and nature of the estate;
Immediate and future financial resources of applicant;
Immediate and future financial needs of other beneficiaries;
Obligations of deceased to a beneficiary;
Physical or mental challenges of applicant;
The reason the deceased made no or made limited provision for the applicant;
Conduct of the applicant towards the deceased;
Relationship of the applicant and deceased; and
Any other relevant matter.
DUTIES OF PERSONAL
REPRESENTATIVES

The personal representatives of a deceased person are either Executors or Administrators. An

Executor is nominated within the Will of a deceased person. If there is no Will, an
Administrator is appointed by a Court to manage or administer a decedent's estate. They
administer the estate of the deceased person.
The duties of personal representatives in the process of administering the estate:
1. Ascertain the net estate – collect all assets & find out what are all the liabilities;
2. Apply for the grant - either Probate, Letters of Administration with Will annexed or Letters
of Administration;
3. Pay all liabilities – death duties, stamp duties, creditors etc; and
4. Distribute the estate.
 DUTIES OF EXECUTOR

 Require payment of unsecured debt due to estate – Caney v. Bond; Re Brogden (no case
against executor if debtor cannot pay debt.
 No duty to call in secured loans unless money needed for the estate’s expenses – Re
Chapman
 To realize any investment within a reasonable time – Grayburn v. Clarkson
 Exercise reasonable discretion as to when to sell shares – Re Chapman; Marley Estate
cases. Shares should be sold within one year of obtaining probate
 Take care to preserve the deceased’s estate
 DUTIES OF EXECUTOR

 Power to sell personalty to administer the estate – Chaplin & Saffordshire Potteries Co. Ltd
 Power to raise money to administer estate – Earl Vane v. Rigden
 Power to grant lease to administer estate – Oceanic Steam Navigation v. Sutherberry
 Executor may carry on the deceased’s business only for the purpose of realization of the estate
to pay debts etc – Re Crowther
 Executor may carry on deceased’s business if will so directs – Re Slater; Re Smith
 Executor is liable on contracts he enters into on behalf of the estate – Re Morgan
 Executor has right of indemnity for the estate – Re Johnson; Re Frith
 Profits belong to the estate – Abbott v. Parfitt
 DUTIES OF EXECUTORS

 Executor liable for all rents collected – Youngmin v Heath

 Executor who occupies the premises is liable to pay rent – Whitehead v. Palmer
 Executor is only entitles to remuneration as is authorised by statute – see Gray v. Butler
 Court may also order remuneration – Re Duke of Norfolk; Re Worthington
 COLLECTION, REALIZATION AND
DISTRIBUTION OF ESTATE

 Executor/ Administrator have a duty to collect and distribute estate with reasonable
diligence and skill – see Re Tankard
 Executor/ Administrator shall after the time limited in any notice calling for creditors be
at liberty to distribute the assets of the estate among the beneficiaries – Section 22 of the
Trustees Attorneys, Executors (Accounts & General) Act