Letters of Administration with Will Annexed and Special Administrations

1. Letters of Administration with Will Annexed and Special Administrations Estates Law and Practice

2. Introduction • Tonight we’ll be looking at: • Letters of Administration with will annexed • Administration de bonis non administratis • Administration durante minore aetate • Administration durante dementia • Administration pendente lite • Administration durante absentia

3. Letters of Administration with will annexed • Procedure is broadly the same as normal letters of administration. • However, the administrator is required to follow the terms of the will rather than distribute the estate under the intestacy rules. • Generally used where the deceased left a valid will but there is no executor to be appointed (see over).

4. When used • Letters of administration with will annexed are used where: • The will does not appoint an executor. • The executor predeceased the testator. • The executor is unable or unwilling to act. • The executor cannot be found. • The executor has not applied for probate. • The will appointed the deceased’s former partner/spouse as executor and that appointment is now void under s 19 of the Wills Act 2007.

5. Who will be Administrator? • The order of priority is set out in High Court Rule 27.26: • Residuary beneficiary holding in trust for someone else. • Residuary beneficiary for life. • Residuary beneficiary or someone entitled to a share of the residue. • Specific beneficiaries and creditors • Contingent beneficiaries. • Someone who receives nothing under the will but would have if the deceased died intestate.

6. Affidavit • Form PR 2 is the Affidavit for Obtaining grant of letters of Administration with Will Annexed. • In paragraph 7 the affidavit sets out why administration with will annexed is being sort.

7. Administration with will annexed • Once appointed the administrator must administer the estate in accordance with the law and the will. • In this respect the administrator’s duties are essentially the same as an executor.

8. Administration de bonis non administratis • This type of grant is made if probate has been granted to an executor who dies or disappears before the administration of the estate is completed. • It can also be granted if an administrator has been appointed and then died before completing the administration. • Note that if the executor dies but has appointed their own executor then that executor can administer the estate without any further grant.

9. Administration durante minore aetate • “Administration while the executor is a minor” • If the sole executor is a minor (unmarried and under 20 or married but under 18) then this temporary grant will be made. • Once the executor either marries or reaches 20 the administration will end. • If there are several executors and one is a minor then probate will be granted to the adult executors only. • See section 9 Administration Act.

10. Administration durante dementia • “Administration during [the executor’s] dementia” • This temporary grant is used where the sole executor is mentally incapacitated.

11. Administration pendente lite • “Administration during the term of litigation” • Used if an estate is involved in a legal action regarding the validity of the will or a grant of administration. • Section 7 of the Administration Act grants the temporary administrator all the usual powers except the power to make distributions out of the estate (they can pay debts though).

12. Administration durante absentia • “Administration during [the executor’s] absence” • A temporary grant made during the term of an administration when the administrator is absent from New Zealand. • Under section 8 of the Administration Act the former administration is suspended until the temporary grant ends.