bar association presention7-current

Grants of Grants of AdministrationAdministration in in the the

Supreme Court of JamaicaSupreme Court of Jamaica

Jamaica Bar Association Jamaica Bar Association SeminarSeminar

June 6-7, 2015June 6-7, 2015

Presenters:Presenters: Nicole Walters -Wellington, Nicole Walters -Wellington, Registrar (Ag.)Registrar (Ag.)

Meisha – Ann Kelly, Deputy Meisha – Ann Kelly, Deputy RegistrarRegistrar

Grants of Administration1. Grant of Probate2. Grant of Letters of Administration3. Grant of Letters of Administration with Will

Annexed4. Resealed Grants5. Grant of Letters of Administration with Will

Annexed De Bonis Non6. Grant of Letters of Administration De Bonis

Non7. Grant of Probate by Representation8. Grant of Double Probate

Applications for Grant of ProbateApplications for Grant of Probate

1.1. The following documents must be filed when The following documents must be filed when applying for probate: applying for probate:

a.a. Original will and codicil where applicable. Original will and codicil where applicable.

b.b. Certified Copy of Original Death Certificate. If Certified Copy of Original Death Certificate. If unavailableunavailable, file Affidavit in Proof of Death. , file Affidavit in Proof of Death.

c.c. Oath of Executor - should account for non-applying Oath of Executor - should account for non-applying executors by reserving power, showing renunciation or executors by reserving power, showing renunciation or death of co-executordeath of co-executor

Applications for Grant of ProbateApplications for Grant of Probate2. Additional Documents that may be required:

a. Affidavit of Due Executionb.b. Affidavit of Knowledge and AcceptanceAffidavit of Knowledge and Acceptancec.c. Affidavit of DelayAffidavit of Delayd.d. Affidavit of AliasAffidavit of Aliase.e. Affidavit of HandwritingAffidavit of Handwritingf.f. Affidavit of SearchAffidavit of Searchg.g. An Affidavit of Plight and ConditionAn Affidavit of Plight and Condition

Applications for Grant of ProbateApplications for Grant of Probate3.3. The following should also be noted:The following should also be noted:

a.a. Only an executor can apply for probate – Agent Only an executor can apply for probate – Agent acting under Power of Attorney from executor must acting under Power of Attorney from executor must apply for L/A with Will Annexed. apply for L/A with Will Annexed.

b.b. If no executor is named in the will, application must If no executor is named in the will, application must be made for L/A with Will Annexed. be made for L/A with Will Annexed.

c.c. A A primaryprimary executor and a executor and a substitutesubstitute executor cannot executor cannot generally obtain probate jointly. Only generally obtain probate jointly. Only co-executorsco-executors can apply for probate jointly.can apply for probate jointly.

Applications for Grant of ProbateApplications for Grant of Probated.d. Marking clause must be endorsed on the actual Marking clause must be endorsed on the actual

will (top, bottom, margins or back of the last page)will (top, bottom, margins or back of the last page)

e.e. Same JP/Notary Public and the same date are to Same JP/Notary Public and the same date are to be used in the jurat of the documents as well as be used in the jurat of the documents as well as the related marking clause.the related marking clause.

f.f. Grants from non-commonwealth countries e.g. Grants from non-commonwealth countries e.g. USA cannot be resealed - treated as regular USA cannot be resealed - treated as regular probate application. File certified copy of grant & probate application. File certified copy of grant & will endorsed with seal of foreign court.will endorsed with seal of foreign court.

Applications for Grant of Letters Applications for Grant of Letters of Administration (L/A)of Administration (L/A)

1.1. The following documents must be filed when applying The following documents must be filed when applying for Grant of Letters of Administration (L/A):for Grant of Letters of Administration (L/A):

a.a. Certified Copy of Original Death CertificateCertified Copy of Original Death Certificateb.b. Oath of Administrator - state applicant’s Oath of Administrator - state applicant’s

capacity/relationship e.g. spouse or child capacity/relationship e.g. spouse or child andand account for other beneficiaries (Consent, Deed account for other beneficiaries (Consent, Deed Renunciation or Notice and proof of service).Renunciation or Notice and proof of service).

c.c. If applicant is applying as personal representative of If applicant is applying as personal representative of a beneficiary, grant issued in the beneficiary’s a beneficiary, grant issued in the beneficiary’s estate must be filed. estate must be filed.


d.d. Deceased beneficiaries – where a beneficiary Deceased beneficiaries – where a beneficiary survives the deceased but later dies, notice should be survives the deceased but later dies, notice should be sent to their personal representative or beneficiaries.sent to their personal representative or beneficiaries.

e.e. Administrator-General’s CertificateAdministrator-General’s Certificate f.f. Tear sheetsTear sheets

NBNB: Beneficiaries who are alive are ranked higher than the : Beneficiaries who are alive are ranked higher than the personal representative of a deceased spouse who personal representative of a deceased spouse who survived the deceased but died without obtaining L/A.survived the deceased but died without obtaining L/A.

2.2. Additional Documents that may be required:Additional Documents that may be required:a.a. Affidavit of DelayAffidavit of Delayb.b. Affidavit of AliasAffidavit of Alias


3.3. The following should also be noted:The following should also be noted:

a.a. Applicant Applicant mustmust fall within the Order of Priority listed in the fall within the Order of Priority listed in the CPR.CPR.

NB:NB: stepchildren, grandchildren (acting in their own right), stepchildren, grandchildren (acting in their own right), care givers, cousins, nieces and nephews (acting in their own care givers, cousins, nieces and nephews (acting in their own right) or persons raised by the deceased right) or persons raised by the deceased cannotcannot obtain L/A. obtain L/A.

b.b. Common Law spouses – applicant should obtain court order Common Law spouses – applicant should obtain court order declaring spouseship prior to filing application for L/A. declaring spouseship prior to filing application for L/A.

Applications for Grant of L/A Applications for Grant of L/A with Will Annexedwith Will Annexed

1.1. Application arises where deceased died Application arises where deceased died testatetestate but a but a person other than an executor seeks to prove the will person other than an executor seeks to prove the will (usually a beneficiary). Typically arises where:(usually a beneficiary). Typically arises where:

a.a. No executor appointed in the willNo executor appointed in the will

b.b. Executor appointed in the Will has died in the lifetime of Executor appointed in the Will has died in the lifetime of the testator, or after his death, without proving the Will.the testator, or after his death, without proving the Will.


c.c. The executor has renounced probateThe executor has renounced probate

d.d. Executor has been cited to accept or refuse probate Executor has been cited to accept or refuse probate and has not entered an appearanceand has not entered an appearance

e.e. Executor gives Power of Attorney to agent to make the Executor gives Power of Attorney to agent to make the application on his/her behalf. application on his/her behalf.

NBNB: entitlement to obtain this grant is : entitlement to obtain this grant is notnot based on based on applicant’s relationship to the deceased but is based applicant’s relationship to the deceased but is based on applicant’s benefits under will. on applicant’s benefits under will.


2.2. The following documents must be filed when applying The following documents must be filed when applying for L/A with Will Annexed:for L/A with Will Annexed:

a.a. Certified Copy of Original Death CertificateCertified Copy of Original Death Certificateb.b. Oath of Administrator with Will Annexed – state Oath of Administrator with Will Annexed – state

capacity in which applicant is seeking grant (devisee capacity in which applicant is seeking grant (devisee or legatee) and account for other beneficiaries or legatee) and account for other beneficiaries named in the will.named in the will.

c.c. Notice Notice d.d. ConsentConsente.e. Tear sheetsTear sheets


3.3. Additional Documents that may be requiredAdditional Documents that may be required

a.a. Affidavit of DelayAffidavit of Delayb.b. Affidavit of Due ExecutionAffidavit of Due Executionc.c. Affidavit of HandwritingAffidavit of Handwritingd.d. Affidavit of SearchAffidavit of Searche.e. Affidavit of AliasAffidavit of Aliasf.f. Affidavit of Knowledge and Acceptance Affidavit of Knowledge and Acceptance g.g. An Affidavit of Plight and ConditionAn Affidavit of Plight and Condition


4.4. Application for L/A with will annexed cannot be Application for L/A with will annexed cannot be obtained where:obtained where:

a.a. Will invalid – intestacy arises. Apply for L/A. Will invalid – intestacy arises. Apply for L/A.

b.b. Original will lost or destroyed - Apply for Probate of Original will lost or destroyed - Apply for Probate of copy/reconstructed will. copy/reconstructed will.

c.c. Issues concerning due execution of will– Apply for Issues concerning due execution of will– Apply for Probate and address issues in Affidavit of Due Probate and address issues in Affidavit of Due Execution.Execution.

Applications for Grant of L/A with Applications for Grant of L/A with Will AnnexedWill Annexed

5.5. The following should also be noted:The following should also be noted:

a.a. Residuary beneficiary is ranked in priority to all other Residuary beneficiary is ranked in priority to all other beneficiaries.beneficiaries.

b.b. Where executors cannot be located – Citation to accept or Where executors cannot be located – Citation to accept or refuse probate should be issued. If no appearance entered, refuse probate should be issued. If no appearance entered, file application for L/A with will annexed; otherwise a court file application for L/A with will annexed; otherwise a court order must be obtained. order must be obtained.

c.c. Personal Representative of a deceased beneficiary who is Personal Representative of a deceased beneficiary who is applying for this grant must file grant issued in the applying for this grant must file grant issued in the beneficiary’s estate.beneficiary’s estate.

Application for Grant of Administration De Bonis non Administratis - Rule 68.48

1. Arises where a Grant of Administration (Probate, L/A or L/A with will annexed) was previously issued by the court but the grantee has died without fully winding-up the estate.

2. Applicable only when the previous grant was issued by a Jamaican Court (Supreme Court or RMC).


3. The following documents must be filed when applying for a De Bonis Non grant:

a) Oath of Administrator with will annexed De Bonis Non (where the deceased died testate) or

b) Oath of Administrator De Bonis Non (where the deceased died intestate)

c) Proof of previous grant issued by the courtd) Proof of death of the grantee(s)


4. Oath must include the following:a. Details of the unadministered part of the estate and b. A statement that there is no personal representative

either in his own right or by chain of representationchain of representation.

NB: Chain of Representation “runs” through the survivingsurviving proving executorproving executor. If previous grant issued by court was for Probate, the Oath must establish that the “chain” is broken or does not exist by accounting for all Executors named in the will .


5. Order of Priority for applicants differ based on whether the deceased died testate or intestate:-

a. Testacy – follows the order of priority for Grant of L/A with will annexed (rule 68.11).NB: Surviving beneficiaries under the will under the will and also the personal representative of a deceased beneficiary may apply. Consent/notices may also be required

b. Intestacy – follows the order of priority for Grant of L/A. NB: Surviving beneficiaries of the deceased and also the personal representative of a deceased beneficiary may apply. Consent/notices may also be required

Common areas for requisitionCommon areas for requisition

1)1) Jurat – not properly completed (dated, signed Jurat – not properly completed (dated, signed and sealed) by deponent and JP/Notary and sealed) by deponent and JP/Notary Public.Public.

2)2) Estate values – incomplete or inaccurate. They Estate values – incomplete or inaccurate. They should be set out as follows: should be set out as follows:

a)a) gross and net personal estate gross and net personal estate b)b) gross and net real estate gross and net real estate c)c) gross annual value (10% of the gross real gross annual value (10% of the gross real

estate).estate).

Common areas for requisitionCommon areas for requisition3)3) Marking Clause Marking Clause

a)a) Will not marked or the marking clause is Will not marked or the marking clause is incomplete (undated or unsigned). incomplete (undated or unsigned).

b)b) Will incorrectly marked e.g. on instruction, Will incorrectly marked e.g. on instruction, backing/cover page, in body of will or on a backing/cover page, in body of will or on a separate sheet of paper.separate sheet of paper.

c)c) JP and date stated in marking clause does JP and date stated in marking clause does not correspond with the JP and date stated in not correspond with the JP and date stated in jurat of the corresponding document. jurat of the corresponding document.

Common areas for requisitionCommon areas for requisition4)4) Affidavit of Plight And Condition – improper use Affidavit of Plight And Condition – improper use

of the phrase “save and except that stated of the phrase “save and except that stated above”. above”.

5)5) Affidavit of Alias – true full name of deceased is Affidavit of Alias – true full name of deceased is not stated not stated oror no reason stated for inclusion of no reason stated for inclusion of additional name(s). additional name(s).

6)6) Power of Attorney/Deed of Renunciation – not Power of Attorney/Deed of Renunciation – not recorded at the Island Records office.recorded at the Island Records office.

Common areas for requisitionCommon areas for requisition7)7) Notary Public Certificate – certificate not filed Notary Public Certificate – certificate not filed

when documents witnessed in non-when documents witnessed in non-commonwealth jurisdiction.commonwealth jurisdiction.

8)8) Inconsistent spelling of names in application – Inconsistent spelling of names in application – usually occurs with the deceased’s and the usually occurs with the deceased’s and the applicant’s name.applicant’s name.

9)9) Failure to file exhibits that are referenced in the Failure to file exhibits that are referenced in the oath or other affidavits filed.oath or other affidavits filed.

Common areas for requisitionCommon areas for requisition10)10) Order of priority – Applicant does not fall in Order of priority – Applicant does not fall in

order of priority order of priority oror fails to account for other fails to account for other beneficiaries who fall in the same degree or beneficiaries who fall in the same degree or higher.higher.

11)11) Stamp Duty – Grants stamped with incorrect Stamp Duty – Grants stamped with incorrect amounts. See new Fee Schedule in Jamaica amounts. See new Fee Schedule in Jamaica Gazette dated July 20, 2011.Gazette dated July 20, 2011.

12)12) Draft Grant – Four copies (with will attached) Draft Grant – Four copies (with will attached) must be filed with must be filed with allall new applications. new applications.