How does one revoke a grant of administration? - Brother transferred our deceased dad’s properties to himself

My father executed his last will and testament, sharing his two properties among me and my four other siblings equally.

Before he died, my father made us all aware of the will and informed us that our eldest brother is the sole executor. Over the years, despite encouraging our brother to probate the will, he did not do so and he died last year without probating it. While searching through his important documents, we found not only the will but a grant of administration for my father's estate and documents showing the two properties transferred to himself. We were surprised, as we all believed that the properties were still in our father's name. My brother did not execute a will and there is no administrator appointed in his estate. However, his children are adamant that their father is the true owner of the properties. Please advise me and my siblings about what to do and how can we get the properties back in the name of our father. - PH

Dear PH,

A grant of letters of administration is obtained when a person dies intestate, meaning without a will. Your brother should have applied for a grant of probate seeing that he had the will in his possession and he was the sole executor. Even if your brother had mistakenly applied for letters of administration instead of a grant of probate, he knew fully well that there are other beneficiaries and should have transferred the properties to all of you in equal shares. The fact that he transferred the property to himself would suggest to me that he had intended to be the sole beneficiary.

In order to have the transfers cancelled and the properties reverted to your father, the court will first need to be satisfied that the will was executed by your father. A handwriting expert will need to be engaged. He or she would use documents previously signed by your father to determine whether the signature on the will is his. Upon confirming that it was executed by your father, you now have good basis to challenge the grant of letters of administration that was issued in his estate.

If your brother was alive, then the beneficiaries of your father's estate could bring an action against him directly, or in case of his death, the claim could also be brought against his executor(s). Since your brother died without a will, a preliminary application appointing one of his adult children as an 'administrator ad litem' would have to be made. The Civil Procedure Rules, Part 21.7 (1), in particular, allows the court to make an order appointing someone to represent the deceased person's estate for any proceedings brought against that person.

Upon receiving this order appointing one of the adult children ad litem, part 68.37 of the rules allows you to then apply for the revocation of the grant of administration on the basis that it is appropriate to do so. A grant of letters of administration may be revoked if the grant is wrongly made or where a will is discovered after a grant.

If the administrator ad litem wishes to challenge the claim, then the court will determine whether the will is in fact that of your father's and whether or not to revoke the grant. In proving that the will is that of your father's, evidence can be obtained from not only the handwriting expert but also any of the two persons who witnessed the will, as well as other supporting witnesses. Your lawyer will also have to bring evidence that your brother knowingly made a false statement in the application to the effect that your father did not die leaving a will.

If the court is satisfied, based on the evidence presented, then the judge will make three orders: an order declaring the grant of letters of administration in your father's estate null and void; an order accepting the last will and testament of your father; as well as an order cancelling the transfers done to your brother and reverting it to your father.

Odane Marston is an attorney-at-law who specialises in conveyancing, administration, probate, recovery of possession, criminal litigation and divorce. Odane Marston may be contacted via email Odanemarston@gmail.com or telephone 876-999-5391. This article is for general information purposes only and does not constitute legal advice.