Administration Actions
High Court Procedures
An application may be made to the court by way of a special summons procedure on a range of issues relevant to the administration of estates. These include
- the determination of rights and interests of parties and a direction to the executor or administrator to do or refrain from doing a particular act;
- approving any proposed transaction, determination of any question arising in the course of administration of the estate;
determining any question of interpretation; - application for payment of money into court or disposition of those funds.
The procedure is based on an affidavit. The Master of the High Court may deal with certain categories of cases. Otherwise, he must transfer them to the judges’ list for the determination of the judge.
An Administration action may require that accounts be taken. In the High Court, the order may require that account be taken in the examiner’s office.
Circuit Court Administration
The Circuit Court has three principal procedures appropriate to different types of cases. These are a Testamentary Civil Bill, a Succession Civil Bill an ordinary Equity Civil Bill.
The Circuit Court has jurisdiction in relation to proceedings for the administration of an estate. This may be sought by Civil Bill.
Administration action may require that accounts be taken. At the Circuit Court level, the equivalent accounts are to be taken under the direction of the County Registrar by the County Registrar under the direction of the court.
Succession Civil Bill
- applications by spouses to appropriate the dwelling house,
- applications by children under Section 117 of the Succession Act.
Applications may be made to set aside transfers of property made which sought to avoid the rights of spouses or children. The relevant Circuit Court jurisdiction area is that in which the deceased resided ordinarily at the date of death.
Circuit Court Procedures
There are three forms of procedure; civil equity bill, testamentary civil bill and succession civil bill. An Equity Civil Bill is appropriate for administration action requiring or directing the personal representative to administer the estate in accordance with civil law.
A spouse has a legal right share. In certain circumstances, the spousal may appropriate the dwelling house. In such cases, proceedings may be issued, requiring the determination of any issue affecting the rights of others.
A Succession Civil Bill arises in relation to an issue to be determined under the Succession Act, such as issues affecting spouses’ legal right share and a child’s claim under Section 117 of the Succession Act.
Determination of Matters
A construction suit is a court proceeding to determine an issue arising under a will or document by way of the declaration of the rights of persons under it.
It may arise in the context of interpretation of an obscure or ambiguous provision of a will. A beneficiary or other interested party may commence a construction suit.
The executors or administrators of a deceased person or trustees of any person claiming to be interested in the estate or trust may take out a special summons for approval of matters in the administration of the estate or trust. For example, it may recover Any questions affecting
- the right or interest the persons claiming to be creditors, beneficiaries, next of kin, the ascertainment of any of the same
- furnishing of any particulars of accounts by executors, administrators and trustees and if necessary vouching for the same,
- the payment into court of monies in the hands of executors, administrators or trustees directing them to do or abstain from doing any particular act or
- the approval of sales, purchases, compromises or other transactions or
- determination of questions arising in the administration of the estate or trust.
Any of the above parties may equally apply for an order for the administration of the estate of a deceased person or the administration of a trust.
On application by a creditor or beneficiary, the court may make an order on the basis that if proper accounts are not furnished, the accounting party may be obliged to pay the cost of the proceedings.
Administration Order Purpose
An administration action is an action against a personal representative obliging him to administer the estate in accordance with law. The action may be taken by any person having an interest such as a beneficiary, creditor, next of kin etc. The procedure proceeds by way of special summons in the High Court.
The administration action may deal with the rights and interests of the beneficiaries and the obligations of the personal representatives. The court may order the personal representatives to abstain from doing any particular act or matter.
It may involve the approval of a particular action/ It may determine matters in relation to the administration of the estate or any trust or arising in relation to the ascertainment of next of kin or the beneficiaries is under a will.
Proceedings may be commenced by persons with an interest such as beneficiaries, creditors, et cetera. The personal representative may sue and be sued on behalf of the estate. The court may order the parties with an interest in the action to be served and become party to the proceedings.
In an administration action, the court may make an order, which directs certain ancillary actions and questions to be determined in the examiner’s office. The examiner may take accounts and make inquiries as ordered by the court. For example, it may direct inquiries as to the next kin and unascertained person. Advertisements may be required to be published.
Administration Action Procedure
An administration action is an action against a personal representative obliging him to administer the estate in accordance with law. The action may be taken by any person having an interest such as a beneficiary, creditor, next of kin etc.
The procedure commences by way of a special summons in the High Court. Where a court makes an order in proceedings relating to the administration of an estate of a deceased person or by a mortgagee to realise security, it usually directs that accounts and enquiries be taken. The proceedings take place in the Examiner’s Office.
The Examiner’s Office is one of the court offices established by the Court Officers Act 1926. There must be one or two examiners. Their functions are of a quasi-judicial nature and are conferred by statute. They took over duties formally undertaken by the chief clerks in the chambers of the Chancery Judges.
Examiners have powers to issue advertisements, summons witnesses, administrators’ oaths and require the production of documents. They may examine witnesses verbally. Parties are bound to attend when summoned.
Administration Order Directions
Under an administration order, directions are given to lodge all proper accounts and answer all enquiries required by the order and for service on interested parties of copies of such accounts.
Where a court directs accounts or enquiries at any stage in proceedings, they are directed to be taken by the Examiner. The court may give special directions in relation to the mode or manner in which the account is to be taken on vouch.
Interested parties are given the opportunity to lodge objections or surcharge to the account as may be advised. Proceedings are adjourned to allow the directions to be complied with. On the adjourned date, directions are given, if necessary, to register the account, and the adjudication proceeds after completion.
Third-Party Interests
Where in an action for the administration of the estate of a deceased person or trust, an order has been affecting the rights of non-parties, the court may direct any person interested in the estate or trust be served with notice of the judgment. They shall be at liberty to attend proceedings under the judgment or order.
Such persons may become bound by the proceedings in the same manner as if they had originally been a party. Persons who have served may, within one month of service, apply to the court to discharge or vary the judgment or order.
The parties may be obliged to advertise for persons with an interest. Claimants are required to enter and prove their claims in the examiner’s office within a fixed time of the advertisement. The examiner will then adjudicate the claims.
On completion of enquiry for beneficiaries in an estate, the personal representative must see that, where necessary, all persons interested or who have entered appearances are served with notice of the order and have the opportunity to participate. Service may be dispensed with or modified by order.
Procedure and Certificate to Court
Where a court makes an order referring a matter to the Examiner’s Office, the party prosecuting the proceedings is to lodge a notice to proceed in the Office together with copies of the relevant papers. It is to be served on the other party to the proceedings and entered in the Examiner’s list.
On the initial return date, the examiner is likely to give directions in relation to the progress of the matter, including directions for lodgement of accounts, filing affidavits and replies to enquiries, service of documents and direct the period during which accounts and affidavits are filed. A period is allowed for the filing of objections by replying affidavit.
Ultimately perhaps following a number of adjournments as the above process progresses, the Examiner adjudicates on the accounts. At the conclusion of proceedings, the results are set out in a certificate by the examiner to the court. A draft is prepared first, and the solicitors for the parties may be required to answer queries in relation to it before the final certificate is ultimately settled.
On hearing before the Examiner, the certificate may be approved. It is usually adopted by the court and is binding on the parties after a defined period unless an application is made to the court to vary or discharge the same.
Procedure
On the return date fixed by the notice to proceed under an administration order, directions are given to ascertain by advertisement the creditors of the deceased and any claims against the estate. Creditors must submit the particulars of their claim to the named solicitor or the legal personal representative within the time allowed, generally a month.
The date is fixed for adjudicating claims. It is usually ten days after the date for sending in claims. A creditor must come in and prove his claim. Claims are examined by the legal personal representative and those admitted by him without further proof are entered.
Those which, in his opinion, require further proof are entered in a separate part. The legal personal representative verifies the claim sheet.
On the date for adjudicating claims, the legal personal representative produces particulars relating to each claim which the Examiner may allow without further proof. Alternatively, he may direct investigation or require further particular proof of information. He may require the claimant to attend and prove his claim.
Statute-barred claims are not provable. Similarly, void claimants may not be proved. Collaboration is not necessary, but it is desirable.
Accounts Matters
A party to proceedings in the Examiner’s Court may appeal to the court and take its opinion in relation to any matter arising in the proceedings. This includes, in particular, the interpretation of any written instrument or other matters which were not dealt with in the primary order referring the matter to the examiner. In some cases, it may be possible to determine the matter with a reservation to be dealt with by the court if it does not affect the examiner’s certificate.
Beneficiaries of an estate are entitled to details of transactions affecting their interest and benefit. Cash transactions affecting the same are to be apportioned if necessary and to be set out in the accounts.
In a partnership action, books of accounts are presumptive evidence for and against the partners without any special direction.
Where an account is directed to be taken, the party concerned is directed to make out his account and verify the same by affidavit numbering each item consecutively.
Petition of Enquiry
A petition of inquiry may be issued to ascertain unknown or unascertained beneficiaries. This may arise where there are no close relatives. The courts are likely to direct searches be made by way of advertisements in appropriate places.
Once all relevant investigations have been made and no beneficiaries can be located an application may be made for an order deeming the beneficiaries to be dead, not having been heard from for more than seven years.
Circuit Court Administration
An equity civil bill is appropriate for administration action requiring or directing the personal representative to administer the estate in accordance with civil law. An administration action follows a broadly similar procedure to that in the High Court.
Administration action may require that accounts be taken. In the High Court, the order may require that account be taken in the examiner’s office. At Circuit Court level the equivalent accounts are to be taken under the direction of the County Registrar by the County Registrar under the direction of the court.
Succession Act Claims
A spouse has a legal right share. In certain circumstances the spouse may appropriate the dwelling house. In such case proceedings may be issued, requiring the termination of any issue affecting the rights of others.
A child of the deceased may apply to court under Section 117 of the Succession Act where an order that the deceased has failed in his moral duty to make proper provision for that child in accordance with his means whether by will or otherwise.
The proceedings are issued against the personal representative. A personal representative may settle proceedings provided the applicants are of full age and capacity.
Succession Civil Bill
An application relating to Succession Act rights such as for an order that the deceased failed to make proper provision for a child may be commenced in the Circuit Court or High Court. The matter is issued before the master and the matter and is transferred to the High Court.
A succession civil bill arises in relation to an issue to be determined under the Succession Act. This includes
- issues affecting spouses legal right share,
- applications by spouses to appropriate the dwelling house,
- applications by children under Section 117 of the Succession Act
- applications are set aside, transfers of property seeking to avoid the rights of spouses or children.
The relevant Circuit Court jurisdiction area is that in which the deceased resided ordinarily at the date of death.