Ad colligenda bona: The Preservation Grant
There may be occurrences where someone has died either testate or intestate and urgent action is required to preserve the estate. For example there may be a physical agricultural estate which requires fruits to be harvested and sold but there is no one to apply for a grant of representation either because of incapacity or they are abroad. Another example may be a physical asset is deteriorating such as a house or a vehicle. In such a situation the appropriate course of action would be to apply for a grant of administration ad colligenda bona in order to preserve the estate.
As stated in Parry and Clark 11th edition at page 437:
18–66 “ A grant of adminstration ad colligenda bona is made to any suitable person for the purpose of preserving the assets of the estate until a general grant is made. Such a grant is useful for instance, where urgent action is needed and the person entitled to a general grant cannot readily apply for it. A grant ad colligenda bona is usually limited for the purpose of collecting, getting in and receiving the estate and doing acts necessary for its preservation and is always limited until a further grant of representation is made.”
Procedure
The procedure for obtaining such a grant is as follows:
This application is made via an ex parte application to the Registrar or to a judge in chambers.
The affidavit outlines the circumstances which have given rise to the need for the grant. It also states the entitlement of the applicant to a share in the deceased estate and that the applicant is a fit and proper person to act and that the person who is entitled to apply for the general grant of administration cannot be found, is abroad or is otherwise incapacitated.
As stated above this grant will be limited to dealing with the exigencies which have made the grant necessary until a general grant can be applied for. All other documents as required for an application for grant of letters of administration would be required. It is important to note that if the deceased died testate, the will does not have to be marked or exhibited to the application.
Case Law
In the TT case of Carl Mendez and Ors vs Joakim Constantine CV 2015–00257 the court had to determine whether a grant of adminstration ad colligenda bona should be set aside due to the non-disclosure by the applicant that he had several siblings and their relatives who were also beneficially entitled to a share in the estate of the deceased.
At paragraph 8 the court found that the non-disclosure of the existence of key beneficiaries to the estate:
“ i. Gives rise to suspicion, that has not been dispelled by the various explanations offered. It taints with suspicion any future dealings with the estate.
ii. Increases the likelihood that any transactions conducted in the course of the administration by the defendant, (including distributions to persons with claims, and adjustments of the shares of such persons), would be the subject of further litigation...
iii. Raises the probability that the estate will be subject to claims for indemnity against legal costs incurred by the defendant administrator in defending such claims”.
As a result of this the court held that the grant should be set aside. This case elucidates the point that a true reflection of the likely beneficiaries of the estate must be included in the application for a grant of adminstration ad colligenda bona🔷.
Disclaimer: This article is written for informational purposes only and should not be construed as legal advice or as giving rise to an attorney-client relationship.
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