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Estates Law and Practice

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1 Estates Law and Practice
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.

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