Introduction

A grant of Letters of Administration is a judicial act issued by the Supreme Court of New South Wales which allows the administrator to manage and distribute the assets of the deceased’s estate.

The grant can be made based on two distinct applications:

1. Letters of Administration – applies when the deceased person died without leaving a Will (died intestate); and
2. Letters of Administration with the Will annexed – applies when the deceased left a Will but there is no executor available to make an application for a grant of Probate. This scenario normally applies when the executor named in the Will has died or is otherwise unwilling or unable to act.

It is important to also note that:

1. the deceased is required to have left assets in New South Wales;
2. before making any such application, searches must be undertaken to locate any Will or other document that might have set out the deceased’s testamentary intentions; and
3. a notice of intended application must be published on the Online Registry

Eligibility

Generally, persons who are entitled to a share of the deceased’s estate (on intestacy) are entitled to apply for a grant of Letters of Administration.

This category of persons consists of the deceased’s closest living relatives and are also identified at Chapter 4 of the Succession Act 2006 (NSW) (the Act) as follows: the spouse (husband, wife or de-facto partner with whom the deceased has been in a relationship with for a least two years), children, parents, siblings, grandparents, uncles and aunts.

Most often than not, an application for a grant of Letters of Administration is made by the spouse or children of the deceased.

Supreme Court of NSW

Kunc J was required to make a determination in relation to an application for a grant of Letters of Administration in the matter of The Estate of Janet Beris Jackwitz [2018] NSWSC 515.

The proceedings related to an application made by Mr McKinnon who sought a review of a decision made by the Probate Registrar who recommended that the deceased’s estate be referred to the NSW Trustee and Guardian in circumstances where the affidavit (filed by Mr McKinnon in support of the grant of Letters of Administration) “ … did not go far enough to establish the existence of a de facto relationship.”

General Principles

For the purpose of intestacy, a “spouse” is defined in s 104 of the Act and is person:

1. who was married to the [deceased] immediately before the [deceased’s] death, or
2. who was a party to a domestic partnership with the [deceased] immediately before the [deceased’s] death.

When there is no marriage, “a domestic partnership” is defined in s 105 of the Act as follows:

A domestic partnership is a relationship between the [deceased] and another person that is a registered relationship, or intestate registered relationship, within the meaning of the Relationships Register Act 2010, or a de facto relationship that:

1. has been in existence for a continuous period of 2 years, or
2. has resulted in the birth of a child

Section 21C of the Interpretation Act 1987 defines a “de facto relationship” as follows:

A person is in a de facto relationship with another person if:

1. they have a relationship as a couple living together, and
2. they are not married to another or related by family

In determining whether 2 persons “have a relationship as a couple” the circumstances of each relationship are taken into account including the following matters:

1. the duration of the relationship,
2. the nature and extent of their common residence,
3. whether a sexual relationship exists,
4. the degree of financial dependence or interdependence, and any arrangements for financial support between them,
5. the ownership, use and acquisition of property,
6. the degree of mutual commitment to a shared life,
7. the care and support of children,
8. the performance of household duties,
9. the reputation and public aspects of the relationship.

Outcome

After examining the evidence before the Court and applying the general principles, His Honour concluded “ … I am satisfied that [Mr McKinnon’s] evidence supports the finding, and the Court finds, that he and [the deceased] had a relationship as a couple living together for the purposes of the definition of de facto relationship …”

Because of this determination, his Honour, inter alia, made Orders that Letters of the Administration of the deceased’s estate be granted to Mr McKinnon.

Seek advice early

It is important that you seek advice early if you are considering making an application for a grant of Letter of Administration or to oppose an unmeritorious application as there are governing rules and multiple factors which have to be taken into account.

Costin Stan at FCW Lawyers is a Contested Estates practitioner and is always wiling to help you understand what your rights are and will always guide you to make the best decisions.