Two sisters, BNU and ATH, disputed the division of the estate of their late father.

Their late father’s will named an executor, but the executor renounced his right to apply for probate. While the authority of an executor stems from their appointment in a will and takes effect from the death of the testator, an administrator is in a different position because their title depends on the grant of administration itself.

BNU applied ex parte  under the Non-Contentious Probate Rules to the BVI Probate Court for the appointment of herself as administratrix ad colligenda bona  (AACB) of the BVI estate. A grant AACB is a limited form of authority to collect and preserve the assets of a deceased person’s estate before a full grant is issued.

Justice Young made an order appointing BNU as AACB and granted BNU permission to bring a derivative action under section 184C(1) of the BVI Business Companies Act, Revised Edition 2020 (Permission Application). Following the obtaining of that order, BNU applied for and obtained ex parte  freezing and proprietary injunctions against ATH’s husband and a company of which he was the executive director (Injunction Application).

ATH, her husband and the company subsequently applied to set aside Justice Young’s order and discharge the injunctions respectively.

Justice Mithani strongly disapproved of BNU’s appointment as an administratrix of an estate on a temporary or emergency basis for multiple reasons, including that the application had been made ex parte, there had been a failure to give immediate notice of the appointment to ATH, and BNU had later applied without notice for a grant to perfect that entitlement.

His Lordship concluded that Justice Young’s order did not permit BNU to act without taking out a formal grant of representation. The documents necessary for a formal grant of representation to be issued were not before Justice Young and, therefore, Her Ladyship had had no power to issue the grant to follow on from the order she made appointing BNU as AACB. Justice Mithani rejected a further contention that he, sitting in the Commercial Court, should issue a grant, rather than a Judge of the Probate Court.

A claim based on a cause of action, where legal capacity to sue is lacking, is a nullity. Accordingly, the High Court held that the Permission Application was simply not valid on account of the lack of authority on the part of BNU to bring it. Further, the Injunction Application, which was brought in the course of the Permission Application, also fell away.

In any event, Justice Mithani concluded that Justice Young’s order should itself be set aside because the procedure initiated by BNU to apply for her appointment as AACB was wholly inappropriate.

This is an insightful judgment that that merits careful reading by all those interested in this specialist field.