Where a court makes an order in proceedings relating to the administration of an estate of a deceased person or by a mortgagee to realise security, it usually directs that accounts and enquiries be taken. The proceedings take place in the Examiner’s Office.
The Examiner’s Office is one of the court offices established by the Court Officers Act 1926. There must be one or two examiners. Their functions are of a quasi-judicial nature and are conferred by statute. They took over duties formally undertaken by the chief clerks in chambers of the Chancery Judges.
Examiners have powers to issue advertisements, summons witness, administrators’ oath and require the production of documents. They may examine witnesses verbally. Parties are bound to attend when summoned.
A party to proceedings in the Examiner’s Court may appeal to the court and take its opinion in relation to any matter arising in the proceedings. This includes, in particular, the interpretation of any written instrument or other matters which were not dealt with in the primary order referring the matter to the examiner. In some cases, it may be possible to determine the matter with a reservation to be dealt with by the court, if it does not affect the examiner’s certificate.
Taking of Accounts
Where a court direct accounts or enquiries at any stage in proceedings they are directed to be taken by the examiner. Special directions may be given by the court in relation to the mode or manner in which the account is to be taken on vouch. In preference of action books of accounts are presumptive witness for and against the partners without any special direction.
Where an account is directed to be taken, the party concerned is directed to make out his account and verify the same by affidavit numbering each item consecutively.
Where a court makes an order referring a matter to the Examiner’s Office, the party prosecuting the proceedings is to lodge a notice to proceed in the office together with copies of the relevant papers. It is to be served and the other party to the proceedings and entered in the examiner’s list.
Procedure and Certificate to Court
On the initial return date, the examiner is likely to give directions in relation to the progress of the matter including directions for lodgement of accounts, filing affidavits and replies to enquiries, service of documents and direct the period during which accounts and affidavits are filed. A period is allowed for the filing of objections by replying affidavit.
Ultimately perhaps following a number of adjournments as the above process progresses, the examiner adjudicates on the accounts. At the conclusion of proceedings, the results are set out in a certificate by the examiner to the court. A draft is prepared first, and the solicitors for the parties may be required to answer queries in relation to it before the final certificate is ultimately settled.
On hearing before the examiner the certificate may be approved. It is usually adopted by the court and is binding on the parties after a defined period unless an application is made to the court to vary or discharge the same.
The executors or administrators of a deceased person or trustees of any person claiming to be interested in the estate or trust may take out a special summons for relief without administration of the estate or trust. Any questions affecting
- the right or interest the persons claiming to be creditors, beneficiaries, next of kin, the ascertainment of any of the same
- furnishing of any particulars of accounts by executors, administrators and trustees and if necessary vouching for the same,
- the payment into court of monies in the hands of executors, administrators or trustees directing them to do or abstaining from doing any particular act or
- the approval of sales, purchases, compromises or other transactions or determination of questions arising in the administration of the estate or trust.
Any of the above parties may equally apply for in order for the administration of the estate of a deceased person or the administration of a trust.
On application by a creditor or beneficiary the court may make an order on the basis that if proper accounts are not furnished, the accounting party may be obliged to pay the cost of the proceedings.
Under an administration order, directions are given to lodge all proper accounts and answer all enquiries required by the order and for service on interested parties of copies of such accounts.
Interested parties are given the opportunity to lodge objections or surcharge to the account as may be advised. Proceedings are adjourned to allow the directions to be complied with. On the adjourned date, directions are given if necessary to register the account and the adjudication proceeds after completion.
Beneficiaries of an estate are entitled to details of transactions affecting their interest and benefit. Cash transactions affecting the same are to be apportioned if necessary and to be set out in the accounts.
Third Party Interests
Where in an action for the administration of the estate of a deceased person or trust an order has been affecting the rights of non-parties, the court may direct any person interested in the estate or trust be served at the judgment and such notice should be. They shall be at liberty to attend proceedings under the judgment or order.
Such persons may become bound by the proceedings in the same manner as they had originally been a party. Persons who have served may within one month of service apply to the court to discharge or vary the judgment or order.
The parties may be obliged to advertise for persons with an interest. Claimants are required to enter and prove their claims in the examiner’s office within a fixed time of the advertisement. The examiner will then adjudicate on the claims.
On completion of enquiry for beneficiaries in an estate, the personal representative must see that where necessary all persons interested or entered appearances are served with notice of the order and have the opportunity to participate. Service may be dispensed with or modified by order.
On the return date fixed by the notice to proceed under an administration order directions are given to ascertain by advertisement, the creditors of the deceased and any claims against the estate. Creditors must submit the particulars of their claim to the named solicitor or the legal personal representative within the time allowed, generally a month.
The date is fixed for adjudicating claims. It is usually 10 days after the date for sending in claims. A creditor must come in and prove his claim. Claims are examined by the legal personal representative and those admitted by him without further proof are entered.
Those which in his opinion require further proof are entered in a separate part. The claim sheet is verified by the legal personal representative.
On the date for adjudicating claims, the legal personal representative produces particulars relating to each claim which the examiner may allow without further proof. Alternatively, he may direct investigation or require further particulars proof of information. He may require the claimant to attend and prove his claim.
Statute-barred claims are not provable. Similarly, void claimants may not be proved. Collaboration is not necessary but it is desirable.