Administration Durante Absentia

Section 7 of the Estate Administration Act allows the court to appoint a person to administer an estate or part of it where an executor resides out of the province “and it appears to the court to be necessary or convenient by reason of the insolvency of the estate of the deceased or other special circumstances.”

 Administration Durante Absentia

Section 11 provides: .(1) This section applies if

(a) the executor to whom probate of a will has been granted, or

 

(b) the administrator to whom administration of an estate has been granted,

 

is residing outside British Columbia at the end of 12 calendar months from the death of the deceased.

 

(2) A creditor, spouse, next of kin or legatee may apply to the court for an order under subsection (3), on an affidavit setting out

 

(a) the capacity in and the grounds on which the applicant applies, and

 

(b) that delay is being caused in the administration of the estate of the testator or intestate, owing to the absence of the executor or administrator from British Columbia.

 

(3) On application under subsection (2), the court may grant to the applicant special administration of the estate of the deceased person, either general or limited, and on the terms as to notice and security as the court thinks fit.

 

(4) Subsections (1) to (3) do not abridge the powers of the court as defined in preceding sections.

 

(5) If an executor capable of acting returns to British Columbia and becomes resident in British Columbia when an application under subsection (2) is pending, the executor must be made a party to the application, and the costs incurred by granting administration under subsection (3) are in the discretion of the court.

 

(6) A person to whom administration is granted under subsection (3) has the same powers as an administrator appointed pending the minority of the next of kin.

 

(7) Pending an application for the grant of special administration under subsection (3) the court may appoint a person to collect any debts or effects due to the estate and to give discharges for them.

 

(8) A person appointed under subsection (7) must give security as the court orders for the proper discharge of the person’s duties.

 

s.11(2) A creditor, spouse, next of kin or legatee may apply to the court for an order under subsection (3), on an affidavit setting out(a) the capacity in and the grounds on which the applicant applies, and

(b) that delay is being caused in the administration of the estate of the testator or
intestate, owning to the absence of the executor or administrator from British Columbia.

 

Such a grant has been held to continue in force after the death of the original personal representative. (Taynton v. Hannay (1802) 3 Bos. & P26).

 

The application is made by way of a requisition and should be accompanied by an affidavit setting out the capacity in and the grounds upon which the applicant applies, and that the delay has been caused in the administration of the estate due to the absence of the personal representative from the province. Notice should be given to any person who has received a prior grant.

 

The grant is usually limited to the time at which the absentee returns to the province.

 

If an executor or administrator has disappeared (as opposed to being absent from the province) an application for revocation of the grant and issuance of a further grant under s. 7 of the Estate Administration Act may be advisable.

Trevor Todd

Trevor Todd is one of the province’s most esteemed estate litigation lawyers. He has spent more than 40 years helping the disinherited contest wills and transfers – and win. From his Kerrisdale office, which looks more like an eclectic art gallery than a lawyer’s office, Trevor empowers claimants and restores dignity to families across BC. He is a mentor to young entrepreneurs and an art buff who supports starving artists the world over. He has an eye for talent and a heart for giving back.

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