Administration: Applying for Grant Flashcards
Where does entitlement to apply for Letters of Administration (with will) derive from?
Rule 20 NCPR
What is the order of priority under Rule 20?
a) executor;
b) trustee of the residuary estate;
c) any residuary beneficiary or (where partial intestacy) a beneficiary of the estate under intestacy;
d) PRs of anyone in (c) other than a trustee or life tenant of the residue
e) any other beneficiary or a creditor
f) PRs of anyone in (e).
Can someone apply if there is someone in a higher category willing to apply?
No
Can someone apply if there is someone else in the same category?
Yes
What is clearing off?
explain why anyone with a better right to apply is not doing so
Do you need to clear off someone in the same category?
No
Where does entitlement to apply for Letters of Administration derive from?
NCPR Rule 22
What is the order of priority under Rule 22?
a) surviving spouse or civil partner
b) children of the deceased
c) father and mother of the deceased
d) whole blood siblings (share both parents)
e) half-blood siblings (share one parent)
f) grandparents
g) uncles / aunts of whole blood
h) uncles / aunts of half blood
Who applies for Letters of administration if no one in the order of priority applies?
Crown (bona vacantia)
Who applies for Letters of administration if the Crown doesn’t apply?
creditor, or person who does not receive benefit (but would have done if estate was larger)
Who can apply if someone in the order of priority survived the deceased but died before taking out the grant?
PR of the applicant
What must applicants show under rule 22?
- nature of their familial relationship with the deceased
- must also have a beneficial entitlement under the estate
When may it be appropriate for someone to apply on behalf of a minor?
- No adult with equal or greater entitlement will act
- The minor is the only person within the category having the greatest entitlement, or, all those within the category are minors.
How many administrators are required usually?
One
When are two administrators required?
minor or a life interest in the estate
What happens where two administrators are required but only one in the highest category can apply?
may apply with someone from the next category
What is the max number of administrators?
4
What is an affidavit?
Formal written statement of fact which a person signs under oath
Who swears the affidavit?
Deponent
What is the authenticating statement known as?
jurat
What are the legal requirements for a jurat?
- signed by all parties and dated
- completed and signed by the person witnessing
- must follow immediately on from the text and not on a separate page
Who can witness the jurat?
independent solicitor or commissioner for oaths
What must the witness part of the jurat also state?
their name, address and qualification
When is an affidavit required?
valid will but something renders its validity or interpretation uncertain
What are the typical uses of an affidavit?
Compliance with s 9 WA
Knowledge & Approval
Date
Physical condition of the will
What is an affidavit of due execution?
PRs believe valid but not clear execution requirements in s9 Wills Act have been complied with
Who usually makes an affidavit of due execution regarding s9 and what does it confirm?
- one of the witnesses
- will confirm that the will was executed in accordance with the formalities
What affidavit is required where there is doubt about knowledge and approval?
affidavit of due execution
Who usually makes an affidavit of due execution regarding knowledge and approval and what does it confirm?
- one of the witnesses
- will confirm circumstances in which the Will was executed.
What affidavit is required where there is doubt about the date?
affidavit of due execution
Who usually makes an affidavit of due execution regarding the date and what does it confirm?
- one of the witnesses
- confirm the correct date
What affidavit is required where there are effective alterations made?
affidavit as to alterations
Who submits an affidavit as to alteration and what do they confirm?
one of the witnesses to establish timing of alteration
If there is no affidavit evidence of alterations, what do PRs rely on?
presumptions of timing in s21 WA and common law
What are the other physical signs suggesting that the will is incomplete or tampered with?
- Pin holes
- Paperclip indentations
- Non-consecutive page/clause numbering or other sign of missing pages
- Signs that an attempt had been made to revoke e.g. burning or tearing
What affidavit is required where there are other physical signs suggesting that the will is incomplete or tampered with?
affidavit of plight and condition or
affidavit of attempted revocation
What affidavit is required where there appears to be a missing testamentary document?
affidavit of search
Who submits an affidavit of plight and condition/attempted revocation and what do they confirm?
- signed by someone who is able to confirm the condition of the will when it was executed
- and its condition later when it was found following the death
Who submits an affidavit of search and what do they confirm?
- PR confirms what enquiries/searches made to locate missing doc
What happens where the original will is missing?
NCPR 54 permits a copy to be admitted if there is a court order approving
What should the affidavit for the court order for a missing will include?
- evidence that the will/codicil existed after the deceased’s death (or facts rebutting presumption that it was revoked)
- confirmation correctly executed, and
- that the copy accurately records the testamentary wishes of the deceased
