LEGAL PRINCIPLE: CIVIL PROCEDURE – Commencement of Proceedings – Application for Joinder as Co-Administrator – Whether Commenced by Motion or Writ
PRINCIPLE STATEMENT
If an application to be considered as a person entitled to share in the distribution of an estate can be brought by motion, there is no reason why a person seeking to join a co-administrator to an intestate estate cannot do so by the same procedure... applicants were not initiating a fresh action or suit which could be regarded as an original proceeding against a defendant or defendants. The application cannot be regarded as an action which must be commenced by writ. It is also not a probate action which relates to the grant or recall of probate or letters of administration. It is therefore an interlocutory matter relating to probate which is required to be initiated by way of motion.
RATIO DECIDENDI (SOURCE)
"If an application to be considered as a person entitled to share in the distribution of an estate can be brought by motion, there is no reason why a person seeking to join a co-administrator to an intestate estate cannot do so by the same procedure... applicants were not initiating a fresh action or suit which could be regarded as an original proceeding against a defendant or defendants. The application cannot be regarded as an action which must be commenced by writ. It is also not a probate action which relates to the grant or recall of probate or letters of administration. It is therefore an interlocutory matter relating to probate which is required to be initiated by way of motion."
EXPLANATION / SCOPE
An application to join a co-administrator to an intestate estate is properly commenced by motion, not writ. It is not a fresh action or original proceeding against a defendant. It is not a probate action relating to grant or recall of probate. It is an interlocutory matter relating to probate administration. If an application for distribution share can be by motion, joinder of co-administrator can be by the same procedure. The key is whether the proceeding is adversarial and original—writ required—or ancillary to existing administration—motion suffices. The court looks at substance, not form. The principle ensures efficient administration of estates without unnecessary formality. The motion procedure is appropriate for interlocutory probate matters.
