An application for the administration of an estate "with will attached" (or "annexed") is a written request made to a court of law that the applicant formally take over the estate of someone who has died with a will but with the estate "blowing in the wind" so to speak, rudderless. That can be because something has happened to the person named to be that manager and he or she, the prospective manager (the executor as named in the will) is either unable or unavailable to perform his or her duties. The application proposes that the will is good, and that the decendent's estate be distributed as set out in that will, but simnply that a manager be appointed to do that as would have the executor were she or he available.

Where the executor is available, he or she needs no court order to get going. They derive their legal authority from the will. But in the vacuum of a missing executor: the application for administration "with will attached".

letters of administration with will attachedIn big, bold, header-style letters, the English bible on probate law, Tristam and Coote proposes an alternate name for this otherwise simple wills, estate and probate law issue: letters of administration with the will attached. "Letters" because some jurisdictions still insist on calling the court order in regards to probate, letters.

You can call it (a) application for administration with will annexed, (b) letters of administration with the will attached, (c) or even use the fancy and exotic term cum testamento annexo (the Latin term for "with will attached").

In most cases, in a nutshell, a person would opt to make an application for administration with will annexed when the executor, and any alternate(s), are incapable themselves or have died before the testator, leaving the estate prospectively divvied-up as per the will, but without any manager which, in law, is a recipe for chaos especially where there are assets that need management such as rental units or other real estate assets.

The manager is called an executor when the manager is appointed in a will, or when Court-named, an administrator. In some jurisdictions (eg. Quebec), the administrator is not-so-subtly called. In the name of plain language, another proffered term, a name which whittles down his/her duties to the bare essentials, a liquidator.

Essentially, the applicant for letters of administration with will attached wants to be named executor even though she or he was not so-chosen by the testator to do the job, not even as back-up (alternate executor). In good legalese, the term executor is wrong since the person making the application seeks not to be the executor or executrix, but the administrator. Strictly speaking, an executor is a person named in a will who then so-acts. If she or he dies before the person whose will it is, he or she cannot be an executor - she or he becomes an administrator.

cum testamento annexoOther situations where the application for administration with will attached is used include where the executor may well have survived the testator but is no longer competent to act as executor. In other cases, the executor named may still not be of the age of majority in which case, the guardian of that child would make an application to administer the estate that would of otherwise been managed by his/her charge, an application for administration with will attached.

In Re Bowerman, the Ontario court and approved of an application for administration with will attached to remove an executor named in the will. This is a very exceptional case and was justified, in the words of Justice Cornish, as follows:

"... that her (the executrix) hostility to Miss Wilson, the sole beneficiary of the will, made it very likely that she would attempt to frustrate the testator's gift to his wife and that this constituted a conflict of interest (and) that the history of health, mental and physical, was unfit for an executor's responsibilities."

For any and all applications for administration with will annexed, there is usually a bump in the road to beware of immediately, and that is a statute that provides a rank, a list of preferred persons entitled to to probate when a named person is not available. These would include, as common sense would anticipate, the surviving spouse of the deceased person and a candidate drawn from the deceased's next of kin. In most places, the choice will come down to judicial discretion.

On that, an old English case (1809, Earl of Warwick v Greville) is often used in Court:

"The (a) statute leaves it to the ordinary to grant letters of administration to the next of kin ; all here have an equal interest; all except the nephew stand in an equal degree of relationship; none have a legal preference; the selection rests with the discretion of the Court; that discretion, however, is not to be arbitrarily or capriciously assumed, but to be a legal discretion governed by principle and sanctioned by practice;
in exercising it the Court is not to be guided by the wishes or feelings of parties, but is to look to the benefit of the estate and to that of all the persons interested in the distribution of the property. The first duty of the Court then is to place it in the
hands of that person who is likely best to convert it to the advantage of those who have claims, either in paying the creditors or in making distribution; the primary object is the interest of the property."1

Nowadays, in some situations, with extensive re-definitions of the word spouse to recognize in law long-term common law mariages, and same-sex marital relationships, one would want to be thorough in setting up a list of priority candidates.

Because of the above, the judicial discretion aspect of things and the potential for competing applications or simply to reassure the judge that the candidate has the support of similarly persons in the genealogy of the deceased, an applicant would often seek consents from his or her peers as to her application and submit those consents to the Court at the time of the application.

With Closing Words Annexed

Probate, estate and wills law is one of the last areas of the law to benefit from the any effort made to simplify process and procedure. There is no reason for this that stands out except, perhaps, the whole area concerns, really, just assets and those of dead people, lower on the priority scale of rules revisionists when compared to civil law, family law or criminal law.

These, then, remain tricky applications to maker properly and lend themselves poorly to do-it-yourself" kits. This is unfortunate as that then entails legal fees but legal fees which may turn out to be your best investment yet. Lawyers and qualified notaries do make money in putting these applications together but they do them to specifications and avoid the long, frustrating delays associated with documents rejected by probate registries in language difficult to understand. Another option always available to the wannabe administrator is to harvest what information they can from credible resources such as this, do what they can and then lean on unbundled legal services to assist with the rest, such as initial advice and the drafting of the very specific forms.

REFERENCES:

  • Civil Code of Québec, LRQ, c C-1991
  • MacKenzie, James, Feeney's Canadian Law of Wills, 4th Ed. (Toronto: LexisNexis, 2013), pages 7-18 to 7-20.
  • NOTE 1: Earl of Warwick v Greville, 161 E.R. 934 (1809). But, also, a person's choice of executor is not to be lightly interfered with: Re Wolfe, 7 DLR 2d 215 (BCCA, 1957)
  • Re Bowerman, 20 OR 2d 374 (1978)
  • Rowe, R. B. and others, Tristram and Coote's Probate Practice, 26th Edition (London: Butterworths, 1983), page 142.