Section 130 of WESA is a new section that provides for a priority of the various persons who may be entitled to apply for a grant of administration where the deceased died without a will (intestate)

The spouse has priority but may nominate another third party in his or her place, be it a Trust company or another person.

If a child of the deceased applies then the consent of the majority of the other children is necessary.

Section 130 states:

Priority among applicants—intestate estate

130 If a person dies without a will, the court may grant administration of the deceased person’s estate to one or more of the following persons in the following order of priority:

(a)            the spouse of the deceased person or a person nominated by the spouse;

(b)       a child of the deceased person having the consent of a majority of the children of the deceased person;

(c)        a person nominated by a child of the deceased person if that person has the consent of a majority of the deceased person’s children;

(d)       a child of the deceased person not having the consent of a majority of the deceased person’s children;

(e)       an intestate successor other than the spouse or child of the deceased person, having the consent of the intestate successors representing a majority in interest of the estate, including the intestate successor who applies for a grant of administration;

(f)        an intestate successor other than the spouse or child of the deceased person, not having the consent of the intestate successors representing a majority in interest of the estate, including the intestate successor who applies for a grant of administration;

(g)            any other person the court considers appropriate to appoint, including, without limitation, the Public Guardian and Trustee, subject to the Public Guardian and Trustee’s consent.

Prior to this section under the Estate Administration act, no clear priority of applicants existed, and the court had discretion to appoint one r more net of kin.

 

S 131 states that where there is a will but no executor named, or the executor has renounced or is unable or unwilling to act, s 131 also sets out a priority of who may apply:

1) a beneficiary who applies having the consent of the beneficiaries representing the majority interests of the estate, including the applicant;

2) a beneficiary who applies not having the consent of the beneficiaries representing the majority interest of the estate , including the applicant

 

S 132 gives the Court an overriding discretion to appoint any person including the Public Guardian where the Court considers there are “special circumstances” after considering the priority of applicants under S 131 or S 132.

This provision is similar to the previous S 7 of the Estate Administration act, now repealed.