Estates pending grant

Vesting of property pre-grant

  • The estate of a deceased person pending a grant of representation vests in the Public Trustee (now referred to as the NSW Trustee) in the same manner as it would vest in the Ordinary of the Ecclesiastical Court in England: Probate and Administration Act 1898 (NSW) s 61.
  • Historically:
    • The executor derived title with respect to personal property from the will upon the deceased’s death.
    • Title to real property vested on the death in the devisee if there was a will or the heir at law if there was an intestacy.
    • If there was no executor, title to personal property rested with the Ordinary of the Ecclesiastical Court.
  • The Probate Act 1890 (NSW) unified the administration of the estate with respect to real and personal property so that an executor or administrator now derives title from the grant: Probate and Administration Act 1898 (NSW) s 44.
    • Once the grant is made the deceased’s property is taken to have vested in the executor or administrator.
      • This validates actions done by the executor or administrator prior to obtaining the grant: The Daily Pty Ltd v White (1946) 63 WN (NSW) 62, 263.
        • This is as long as such acts are done for the benefit of the estate: Morgan v Thomas (1853) 8 Exch 303; 155 ER 1362.
    • There is no standing to bring litigation on behalf of the estate without having obtained a grant, and standing cannot be obtained retrospectively: Byers v Overton Investments Pty Ltd [2001] FCA 760 [29].
  • The person entitled to the grant does not have any right to sue to recover the property of the deceased before a grant is made unless it is in immediate need of preservation or, if the property is documentary, it is necessary for obtaining the grant: Caudle v LD Law Ltd [2008] EWHC 374 (QB).
  • The role of s 61 (vesting in public trustee) is to fill the gap between death and grant so the property vests somewhere during that period.

Powers of the Public Trustee pre-grant

  • Initially courts viewed s 61 as a notional vesting that gave the Public Trustee no real power with respect to the estate: Ex parte Public Trustee; Re Birch (1951) 51 SR (NSW) 345.
    • This view was impliedly rejected in by the High Court which held that the Public Trustee could be served with a notice to quit in respect of a lease held by the estate and could perhaps surrender a least: Andrews v Hogan (1952) 86 CLR 223.
      • This was confirmed in NSW, but the role of the Public Trustee beyond this is undefined: Oxford Meat Co Pty Ltd v McDonald (1963) 63 SR (NSW) 423. See also Atas v Gertsch [1998] NSWSC 522.
  • In proceedings for possession of land where no grant has been made, the NSW Trustee is the appropriate defendant: GEL Custodians Pty Ltd v Estate of Wells [2013] NSWSC 973.
  • Neither the NSW Trustee nor an executor has the power to commence proceedings prior to the making of a grant: GEL Custodians Pty Ltd v Estate of Wells [2013] NSWSC 973.
  • The position appears to be that the Public Trustee has a role as the repository of title and in extreme cases to preserve the estate property pending grant.
    • In practical terms the Public Trustee is most reluctant to act in respect of any estate prior to a grant.

Executor de son tort

  • An executor de son tort is a person who intermeddles in the estate without having obtained a grant.
  • An executor de son tort derives from the fact that a creditor who deals with someone who appears to be an executor is entitled to rely on this fact and hold the intermeddler liable as if they were the executor — this comes from the days when the registration of grants was not easily done or checked.
  • An executor de son tort does not gain any interest in the deceased’s property by so acting: Ex parte Public Trustee; Re Birch (1951) 51 SR (NSW) 345.
  • A person who has intermeddled in an estate can be sued whether or not they are named as executor, and there is no necessity for them to take out a grant of probate in order to be sued: Cash v The Nominal Defendant (1969) 90 WN (Pt 1) (NSW) 77.
  • An executor de son tort may pay creditors and plead payment of that debt as a bar to an action by the creditor but must not prefer their own debt: Oxenham v Clapp (1931) 2 B & Ad 309; 109 ER 1158.
  • A named executor who before obtaining a grant intermeddles cannot later renounce probate — but the making of funeral arrangements by a named executor before obtaining a grant including describing oneself as executor will not prevent renunciation: Murray v Ogilvie (1987) 9 NSWLR 1.
  • Merely advertising an intention to apply for probate is not intermeddling: Re Colless (1941) 41 SR (NSW) 133.
  • The modern view is to take a lenient approach as to what acts constitute intermeddling so that the test is whether the intermeddler has so acted as to constitute acceptance of the office of executor: Murray v Ogilvie (1987) 9 NSWLR 1.
  • Preparing a property to make it ready for later sale has not been seen to be intermeddling: Mangraviti v Donato [2009] NSWSC 1258.
  • However, there may be a distinction between doing acts before probate that do not amount to intermeddling but which nevertheless make a named executor liable to creditors or beneficiaries for devastavit: Howling v Kristofferson (Unreported, Supreme Court of New South Wales, Cohen J, 14 October 1992); Mangraviti v Donato [2009] NSWSC 1258; Griffin v Matthews [2012] NSWCA 348 [18].

Jurisdiction

Probate or administration?

  • Probate is the grant made by the court to the person appointed as executor by the testator.
  • Letters of Administration is the grant made by the court where no person is appointed executor by the testator, or where the person so appointed is unable or unwilling to act.
  • Confusion as to the appropriate grant can occur in cases of intestacy.
  • If a testator properly appoints an executor who is willing and able to act, then the appropriate grant is probate, even if the testator has not disposed of either all or part of their estate in the will.
  • Letters of Administration is the appropriate grant where there is a will disposing of the estate (either in whole or part) but where there is no executor appointed or willing and able to act — this is administration cum testamento annexo.

Probate

  • The Supreme Court has jurisdiction to grant probate of the will of any deceased person leaving real or personal property in NSW: Probate and Administration Act 1868 (NSW) s 40.
  • Jurisdiction is determined at the date of death: Re Pope [1965] NZLR 361.
  • There are two requirements for jurisdiction:
    • Death.
    • Property in NSW.
  • Death can be either proved or presumed, in accordance with relevant principles.
  • There must be a valid and unrevoked will: Re Smith [1939] VLR 213.
  • A will that does not dispose of property in NSW may still be admitted to probate if it affects property in this state — the appointment of an executor will affect property: Re Carlton [1924] VLR 237.
    • Regarding wills made specifically to deal with property in another jurisdiction: Goods of Tamplin [1894] P 39.
  • The location of property is a question of private international law or conflicts of law.
  • Even if there is no property in NSW the court may make a grant of letters of administration ad litem in order to provide a defendant within the jurisdiction against whom litigation can be commenced.
    • This will normally be done where the estate is entitled to indemnity from an insurance policy despite having no assets in the jurisdiction: Re Aylmore [1971] VR 375.
  • The court may refuse to admit to probate words in a will that are scandalous, offensive, blasphemous or a danger to national security if they are non-dispositive and irrelevant to construction.
    • Even if dispositive or of such relevance, the court may omit them if untrue: Re N [1950] VLR 39; Estate of Enjakovic (2008) 100 SASR 486; Estate of Brummit [2011] SASC 116.
    • Scandalous broadly means ‘disgraceful to reputation, shameful or shocking’ and offensive broadly means ‘causing offence or displeasure; irritating; highly annoying … repugnant to the moral sense; … pertaining to offence or attack’ and are judged objectively according to the standards of a reasonable person: Estate of Ward [2006] SASC 161 (Gray J). See also Hamilton v Nelson [2012] SASC 219.
  • Words or clauses will not be excluded if they are dispositive, nor will they be excluded on grounds of confidentiality or possible prejudice to litigation: Perpetual Trustee Co Ltd; Re Estate of Milgrove [2004] NSWSC 648.

Letters of administration

  • The Supreme Court has power to grant letters of administration: Probate and Administration Act 1898 (NSW) ss 63, 74.
    • These sections deal with general grants; limited grants are provided for in other sections.
  • The court may, under s 74, if necessary and convenient appoint an administrator of the estate of a deceased who dies:
    • Intestate.
    • Leaving a will but without having appointed an executor.
    • Leaving a will and having appointed an executor where the executor is not willing and competent to take probate or is resident outside NSW.
  • The court may grant administration to a person who is not a minor under s 63 in the following order of preference:
    • The spouse, next of kin or both of the deceased.
    • A person who is fit to be trusted or who complies with a direction for the payment of administration.
    • Any person the court thinks fit including a creditor.
  • s 63 prescribes the order of persons, whereas s 74 gives the court an overriding discretion as to appointment.
  • The appointment is upon the administrator giving such security as the court directs.
    • Normally the administrator must enter into an administration bond in favour of Her Majesty, which normally is a deed in the prescribed form together with two sureties: s 64; Supreme Court Rules 1970 (NSW) pt 78 r 25(6).
      • The value of the bond is normally equal to the value of the property of the deceased: s 65.
        • The court has power to dispense with the bond, the sureties or dispense with the amount; see also Supreme Court Rules 1970 (NSW) pt 78 r 25(7).
          • A bond will not normally be dispensed with but will usually be only required to cover unsecured debts and the shares on non-consenting beneficiaries: Bain v Morabito (Unreported, Supreme Court of New South Wales, Powell J, 14 August 1992).
            • Thus, if there are no debts and all parties consent the bond can be dispense with.
            • The bond should not be dispensed with in circumstances where there is disent between siblings and one sibling is to be granted administration: Smith v Johnson [2008] NSWSC 923.
  • The Supreme Court has stated in an announcement on 3 December 2001 that the current practice of the court is normally not to require a bond at least in the case where there are adult beneficiaries who are sui juris.
    • The Registrar retains the discretion to require a bond; should this happen the former criteria for dispensing with the bond as set out below may be relevant.
  • The test to determine suitability for appointment as administrator is whether they are the best person to give effect to the due and property administration of the estate: Bath v British & Malayan Trustees Ltd (1969) 90 WN (Pt 1) (NSW) 44.
  • The person who has the greatest beneficiary interest in the estate is normally entitled to the grant: Re Slattery (1909) 9 SR (NSW) 577; Bourdales v Carroll; Estate of Holbrook [2007] NSWSC 1057.

Executors

The grant of probate

  • The court may grant probate to one or more executors named in the will and reserve leave to other named executors who have not renounced to apply at some future time: Probate and Administration Act 1898 (NSW) s 41.
  • Every executor named in a will is entitled to apply for probate and this is so notwithstanding the objection of the beneficiaries.
  • The court has discretion in rare cases to pass over the named executor on the grounds that the person is unsuitable: Bowler v Bowler (Unreported, Supreme Court of New South Wales, Young J, 7 June 1990); Re Pedersen (Unreported, Supreme Court of New South Wales, Holland J, 17 June 1977); Telfer v Telfer (No 2) [2013] NSWSC 823 [6]–[12]. See also Probate and Administration Act 1898 (NSW) s 74.
  • The power to pass over the named executor is one necessary in order to prevent a person wholly unsuitable from assuming the office of executor and as such the power ought to be interpreted widely to ensure the due and efficient administration of the estate: Bar-Mordecai v Rotman (Estate of Hilston) (Unreported, Supreme Court of New South Wales, Einstein J, 4 September 1998).
  • A minor is not competent to be an executor but letters of administration durante minore aetate may be granted as to administration during the minority: s 70.
  • A person under a relevant physical or mental disability may be refused probate: Goods of Ponsonby [1895] P 287.
  • A foreign executor may not be granted probate: Bath v British & Malayan Trustees Ltd (1969) 90 WN (Pt 1) (NSW) 44.
    • A grant may be made to an attorney of a foreign executor: s 72.
  • A corporation sole such as the Public Trustee may be granted probate: Public Trustee Act 1913 (NSW) s 7(1).
  • A private or public company cannot be granted probate as it cannot take the necessary oath: Will of Finn (1908) 8 SR (NSW) 32.
    • A trustee company can be an executor as they are expressly authorised by statute: Trustee Companies Act 1964 (NSW).
  • A firm of solicitors may be made executors but the clause must be carefully drawn to avoid uncertainty: Estate of Yearwood (1982) 30 SASR 169.
    • The court must be able to ascertain who the testator intended as executor.
    • A clause appointing ‘any one of’ or ‘any solicitor in her employ’ will be void for uncertainty: Estate of Costello [2014] SASC 134.
    • Unless a contrary intention is shown, the partners of the firm are taken to be the partners at the date of the will: Re Horgan [1971] P 50.
  • A named executor who wishes to contest the will cannot be granted probate — instead the court will appoint an administrator pendente lite: s 73.
  • Bankruptcy is no bar to probate: Hathornthwaite v Russel (1740) 2 Atk 126; 26 ER 480.
  • A witness to the will can be executor but may lose any gift by operation of the witness beneficiary rule: s 13.
  • A criminal conviction per se is no bar to being an executor but probate will not be granted to a person who cannot act because they are in prison: Estate of S [1968] P 302.
  • If the named executor’s misconduct of the testator’s affairs is such as would warrant removal if appointed then probate will be refused: Re Hunter [1932] NZLR 911.
  • A named executor who unlawfully kills the testator will be refused probate: Estate of Crippen [1911] P 108.
  • The holder of a particular officer cannot be an executor unless expressed for the time being in which case it will be construed to mean a particular person: Will of Were (1886) 12 VLR 271.
    • There cannot be a ‘shifting executorship’, but a reference to a person holding an officer ‘for the time being’ may be taken to be a person who holds that office at the time of the deceased’s death: Estate of Chomiak [2012] SASC 27.
  • An executor may be by express appointment in the will or implied from the will, in which case it is called an appointment according to tenor: Goods of Baylis (1865) LR 1 P & D 21.
  • The right of the executor to seek probate is not transferable; where the named executor predeceases the testator or dies after the testator without taking probate, the chain of executors will not apply: Wankford v Wankford (1704) 1 Salk 299; 91 ER 265.
  • If the executor dies after taking probate, the testator’s estate is administered by the executor’s executor (and so on) — this is a chain of executors: Imperial Acts Application Act 1969 (NSW) s 13 (re-enacting 25 Edw 3, st 5, c 5). See also Maddock v Registrar of Titles (Vic) (1915) 19 CLR 681, 688–689 (Griffiths J).
    • This does not apply to an executor who does not prove the will of their testator but where another executor afterwards proves the will of the testator (that is, a co-executor remains living): s 13(1).
    • So long as the chain is unbroken, the last executor in the chain is the executor of every preceding testator: s 13(2).
      • The chain is broken by an intestacy, a failure to appoint an executor, or the failure to obtain probate (though not a temporary grant of administration where probate is subsequently granted): s 13(3).
    • Each executor in the chain has the same rights and liabilities in respect of the estate that the original testator possessed: s 13(4).

Renunciation

  • A named executor’s rights to take probate cease when the named executor renounces probate, survives the testator but dies without taking probate, or is cited to take probate and fails to comply with the court’s direction: Probate and Administration Act 1898 (NSW) s 69.
  • A named executor cannot renounce if they have intermeddled.
  • In addition to the power to cite (s 69(c)), an interested person, the Public Trustee, a trustee company or a creditor of the testator may approach the court by way of summons for an order in the event that the named executor fails to take or renounce probate within three months of the deceased’s death: s 75.
    • Such an order will be for probate to the named executor or letters of administration with the will annexed.
    • The s 75 procedure is preferably as a person cited may appear but take no steps with regard to administration, or an unsuitable executor may appear.
  • A renunciation may be withdrawn provided it is in the interests of the proper administration of the estate, so long as there is no change in the line of administration: Estate of Thurston [2001] NSWSC 144.
    • Once there is a reason for withdrawing the renunciation the application should be granted, particularly if the reason is no longer operative — the testator having chosen the executor, this choice should be recognised by the court.

General grants

  • General grants are not limited in time, property or purpose.
  • The most common general grants are the grant of probate and the grant of letters of administration.
  • Where there is a will but no executor is names or able to act, the grant is letters of administration cum testamento annexo.
  • Sometimes there can be more than one general grant in the one administration.
    • Double probate — one of the named executors later applies for probate after a grant has already been made to another.
    • Cessate grant — the grant applies once a limited grant comes to an end.

Limited grants — limited as to time

Letters of administration durante minore aetate

  • This is a grant where the executor is a minor and lasts for the duration of their minority.
  • The grant is made until the executor attains the age of 18.
  • Where the executor is an infant (under 7), the court will make the grant normally to the next of kin of the infant, unless they are also a minor or whether there is some other good reason to pass over the next of kin.
    • Where the named executor is a minor (older than 7 but younger than 18), they may elect a guardian and if that person consents they will receive the grant: Estate of Hancock [2000] NSWSC 875.

Letters of administration durante dementia

  • The grant where the executor is mentally or physically incapable of managing their own affairs and is for the duration of the disability.

Letters of administration durante absentia

  • The grant where the executor is outside the duration and for the duration of that absence.
    • If the absent executor appears by attorney, a general grant can be made to the attorney: s 72.

Letters of administration pendente lite

  • This grant is used where administration is dependent on the outcome of litigation (eg a challenge to the validity of the will) and is for the duration of the litigation.
  • The litigation must effect the appointment of the executor: Mortimer v Paul (1870) LR 2 P & D 85.
  • Even if the will is valid, if there is some reason why the named executor may be passed over then a grant pendent lite may be made: Ryan v Kazacos [1997] NSWSC 210.
  • This grant is made where there is a need to preserve the estate pending the litigation and will only be made to a person independent of the litigation: Tomkinson v Hersey (1983)34 SASR 181. See also Harris Estate — Gray v Hart [2010] NSWSC 55; Estate of Sini [2013] NSWSC 1459.

Lost and unobtainable wills

  • A grant can be made until the original or more authentic copy is found.
  • This can be upon oral evidence as to the content of the will: Estate of Whitely (No 2) (Unreported, Supreme Court of New South Wales, Powell J, 13 May 1993).

Limited grants — limited as to property

  • A will may appointed an executor for specific property or for property in a specific locality.
  • The grant as to the remaining property will be:
    • ‘Save and except’ where the general grant is made first and the limited grant made second.
    • Caeterorum’ as to the rest of the estate where the limited grant was made first.
  • Letters of administration de bonis non is a grant to complete the administration of the estate where the executor has died or a prior grant has been revoked.

Limited grants — limited as to purpose

Letters of administration ad colligenda bona

  • This is where a general grant cannot be easily obtained and is used for the preservation of assets: Re Cohen [1975] VR 187.

Letters of administration ad litem

  • Grants for the purpose of bringing or defending litigation.
  • Appointment of an administrator ad litem is an extreme step given the financial and legal responsibilities it entails, which may carry fiduciary duties: Estate of Coe [2013] NSWSC 698 [12].

Emergency grants

  • These are special ad hoc grants for the purpose of protecting assets — eg the temporary appointment of a manager to the deceased’s business: Estate of Pickels (1922) 22 SR (NSW) 227); or to attend a company meeting: Will of Sands (1944) 44 SR (NSW) 281.

Grants in common form

  • This relates to the form in which the various grants are obtained.
  • This form is non-litigious as there is no defendant and it is made by the Registrar in Probate.
  • The grant in common form is made on the necessary evidence set out in the Supreme Court Rules 1970 (NSW) (‘Supreme Court Rules’) pt 78 div 3, especially rr 78.24–78.25.
  • The application is by way of summons support by an affidavit in terms of UCPR Form 111.
  • Where there is doubt as to execution, knowledge and approval, attestation, alteration or possible revocation the Registrar can require further evidence by way of affidavit: Supreme Court Rules rr 78.15–78.23.
  • Probate in common form is made in the absence of interested and is therefore liable to be later revoked by such parties in a challenge to the validity of the will.
    • A grant in common form is inherently revokable and to this extent it differs from other judicial acts such as grant in solemn form: Tobin v Ezekiel [2012] NSWCA 285 [8].
  • A grant of administration in common form is in the nature of an interlocutory judgment, open to be revoked at any time upon a proper case being established: Caldar v Public Trustee [2003] NSWCA 187 [5]; Estate Wight; Weight v Robinson [2013] NSWSC 1229.
  • Executors in general are entitled to seek to prove a will in common form.
    • If the propounder of the will has some doubt as to the validity of the will or its text, or there is apprehension that the grant may be opposed by a person entitled to oppose it, the propounder should seek a grant in solemn form: Pratt v Estate of O’Sullivan [2005] NSWSC 1046.
  • If a grant in common form is to be challenged the proper procedure is to seek its revocation.
    • A decision of the registrar to make a grant in common form constitutes the exercise of the jurisdiction of the court and as such the decision is not open to review, although the registrar may refer a matter to a judge of the court for determination: Giniotis v Finlay [2001] NSWCA 169.

Grants in solemn form

  • This is where probate is obtained as a result of contentious proceedings taking place with a defendant and in the presence of interested person.
  • The distinction between grants in common and solemn forms can be blurred, but depends on whether all interested parties have been given notice so as to be bound by the grant: Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786 [226], [251].
  • Essential elements for a grant — Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786 [249]:
    • All interested persons have been given notice and the opportunity to be heard.
    • The court is satisfied by reference to the evidence as to the deceased’s final testamentary intentions, if any.
    • The grant appropriately serves the due administration of justice — a grant is a public act and courts will not make a grant merely because the parties agree to it.
  • Supreme Court Rules pt 78 div 6 govern these proceedings.
    • Proceedings must be commenced by a statement of claim: r 78.36.
  • The court gives directions as to who is to be served or cited to see proceedings in its probate list.
  • The matter proceeds by way of proof of evidence in open court.
  • Proceedings in solemn form bind the interested parties such that the grant can only be set aside in cases of fraud, absence of jurisdiction, etc: Re Dowling; sub nom NSW Trustee & Guardian v Crossley [2013] NSWSC 1040.
  • Interested parties are those who have an interest in the obtaining of the grant or whose rights are affected by the grant — it is not enough merely to challenge the will, there must be an interest that entitles objection to the grant: Re Devoy [1943] St R Qd 137.
  • A legatee does not have sufficient interest simply because they have doubts about the validity of the will under which they take and wish to insist on proof in solemn form to remove those doubts: Leitch v Dore [2005] QSC 69 (8 April 2005).
  • Where a solicitor is a witness to a will or is involved in the taking of instructions this does not of itself prevent them from acting on behalf of the party propounding the will in contested probate proceedings.
    • No conflict of interest arises even if the solicitor is required to give evidence as to the circumstances surrounding the execution of the will: Scallan v Scallan [2001] NSWSC 1078.
    • A conflict of interest would only arise if the solicitor had some direct interest in the outcome of the proceedings beyond doing their best for the client to have success in the action.
  • The parties to a probate suit may compromise the suit and that compromise may be made an order of the court.
    • However, it is clear that mere consent not to propound a will is not an effective compromise — no consent can make or unmake a will: Goods of Watts (1837) 1 Curt 594, 594; 163 ER 208.
  • Those seeking to compromise a probate suit should seek to have the compromise made an order of the court and the court retains the power to decide what the valid testamentary dispositions are: Re Dowling; sub norm NSW Trustee & Guardian v Crossley [2013] NSWSC 1040.
  • It must be proper for the court to make the orders sought and the court will not make a grant simply because the parties agree to it: Re Irving [2003] VSC 351.
    • This is because the making of a grant is a public act that may impact upon persons not party to the proceedings.
    • The court will take into account the fact that the parties have reached agreement and that they are represented by known and competent counsel: Phillpot v Olney [2004] NSWSC 592.
  • A default judgment cannot be given in a probate suit as it would fail to adequately take into account the public interest in realising the last will of a free and capable testator: Re Dowling; sub norm NSW Trustee & Guardian v Crossley [2013] NSWSC 1040.

Caveats

  • There are three types of caveat: Probate and Administration Act 1898 (NSW) s 144.
    • Caveat requiring proof in solemn form.
    • General caveat.
    • Caveat relating to informal testamentary instruments.
  • A caveator must have an interest: Re Devoy [1943] St R Qd 137.
  • The caveat must be lodged before the grant of probate or administration.
  • A caveator must be in a position to support the grounds for the caveat on the return day or be at risk as to costs.
  • A caveat requiring proof in solemn form requires the propounder of the will to file a statement of claim and name the caveator as defendant or file a summons citing the caveator to see proceedings.
  • If a caveat requiring proof in solemn form is used the caveator is restricted as to cross-examination as to due execution.
  • If any other ground other than want of due execution is to be relied upon then a general caveat must be used.
  • Where a grant has been made contrary to the filing of a caveat due to an administrative error in the Registry, the court may revoke the grant if it finds that the original grant should not have been made: Kozak v Berwecki [2008] NSWSC 39 [3].
  • The interest of the caveator must relate to the validity of the will and the right to the grant.
    • A caveat cannot be lodged simply because the caveator has a claim for a family provision order: Kyros v Stavrakis [2009] NSWSC 163.
    • A caveat that does not disclose any proper interest will result in the caveat being ordered to cease to be force and costs may be awarded against the caveator or their legal representative: Kyros v Stavrakis [2009] NSWSC 163.

Resealing

  • Any grant not made in NSW is a foreign grant of no effect in NSW.
  • If a testator left property in NSW as well as another state or country, then one option was to apply for a fresh grant in NSW.
  • The court may reseal certain foreign grants made in any competent court of Her Majesty’s Dominions including grants made in other Australian states: Probate and Administration Act 1898 (NSW) s 107.
  • The court has discretion as to resealing of foreign grants and may refuse resealing where there is a defect in the original grant: Estate of Rogowski; Estate of Biesiada [2007] SASC 161.

Revocation of grants

  • A grant may be revoked where:
    • Fraud has occurred.
    • The wrong person obtained the grant — including under a later will where it is subsequently established that it was made at a time when the testator lacked capacity: Kozak v Berwecki [2008] NSWSC 39.
    • The deceased is alive.
    • The grant is ineffective, useless or endangers the due administration of the estate.
  • Where the administration of the estate is prejudiced by the executor continuing to act the court has a discretion to revoke the grant: Bates v Messner (1967) 67 SR (NSW) 187.
    • The test is whether the estate is prejudice by the acts or omissions of the executor — a mere failure to perform duties is not enough, nor is it a question of it getting close to the position where the grant is useless: Mavrideros v Mack (1998) 45 NSWLR 80.
    • The finding that the due administration of an estate is in jeopardy is not made lightly: Labraga v Pomfret [2005] NSWSC 973 [114].
  • Even where circumstances warranting revocation are established, the court retains a discretion as to whether or not to revoke: Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786.
  • The court may also consider the prejudice to the estate if the grant were to be revoked, particularly if the estate is almost administered and revocation would delay completion: Otto v Redhead [2009] QCA 147.
  • An unreasonable refusal to take step in the administration of the estate or to act upon legal advice to the prejudice of the estate are grounds for revocation of the grant: Baird v Logan — Middleton Estate [2008] NSWSC 1029; Esplin v Timms [2010] NSWSC 339 [13].
  • Unreasonable refusal to pay a legacy such as one ordered by the court under the Family Provision Act 1982 (NSW) is grounds for revocation: Sikorski v Michalowski [2008] NSWSC 404.
  • Wilful default by an executor in failing to get an asset to the estate is also grounds for revocation: Juul v Northey [2010] NSWCA 211.
  • A mere conflict of interest and duty will not result in restraint or removal of a personal representative: Porteous v Rineheart (1998) 19 WAR 495.
    • In this case the court refused to revoke as there was no immediate threat to the estate.
  • In some situations a conflict of interest may arise as a consequence of the testator’s selection of the executor.
    • This might occur where the same person is appointed executor in the wills of two persons who are closely related such as a husband and wife or business partners.
    • In this situation the court will pay close attention to the choice of executor by the testator, recognising that the testator must have appreciated the potential conflict of interest and will not disturb the choice lightly: Tuohey v Tuohey [2002] VSC 180; Morgan v MacRea [2001] NSWSC 1017 [26]; Labraga v Pomfret [2005] NSWSC 973 [113]; Grey v Youngson [2006] WASC 123; Otto v Redhead [2009] QCA 147; Garrett v Mullins-Trnovsky [2014] SASC 138.
  • A conflict of interest leading to the failure to carry out the executorial duties can demonstrate unfitness, thus leading to revocation: Estate of Coates [1999] VSC 156; Rutter v McCusker [2008] NSWSC 1289.
  • A conflict of interest and duty may arise where the executor has to decide whether their own claim against the estate should be accepted or rejected, particularly where the claim rests upon the veracity of the executor’s own evidence as to whether an amount paid was a loan or a gift: Monty Financial Services Ltd v Delmo [1996] 1 VR 65, 83.
    • Similarly where a decision is requires as to whether the estate should bring a claim against the executor: Upton v Downie [2007] NSWSC 1095 [53].
    • While the court will take note of the fact that the executor is a person chosen by the testator and that the executor must have appreciated certain conflicts of interest inherent in the role, the court will rely upon this fact where the potential conflict was not known to the testator: Upton v Downie [2007] NSWSC 1095 [45].
  • If a court concludes that executors have been guilty of wilful default that relates to matters personal to an executor, that person ought to be removed from the role: Juul v Northey [2010] NSWCA 211 [239]–[240].
    • This ensures independent legal personal representatives can consider whether in the light of that find they should take proceedings to recover the funds found to be owing to the estate.
  • A person taking property in good faith under a grant later revoked is protected subject to any equitable right to trace the money into that person’s hands where it has been wrongly paid: Probate and Administration Act 1898 (NSW) s 40D(3).
  • Consequently, revocation is not ab inito: Hewson v Shelley [1914] 2 Ch 3.
  • The fact that executorial duties have been completed is no bar to revocation: Mavrideros v Mack (1998) 45 NSWLR 80.
  • A grant of probate cannot be revoked in part.
    • The entire grant must be revoked and then replaced by a fresh grant.
    • In the case where the grant is to two or more executors and one is unable to continue then the grant must be revoked and it is not possible to strike out the name of the executor in question: Gorman v McGuire; Estate of Gorman [2002] NSWSC 1089; O’Brien v McCormick [2005] NSWSC 619; Riccardi v Riccardi [2013] NSWSC 1655. Cf Profilio v Profilio [1999] NSWSC 657.
      • The court may revoke probate given to multiple executors and make a fresh grant to some of them: Schaverien v Jones [2007] NSWSC 1429.
  • The usual procedure where a later testamentary instrument is discovered after grant is for the executor of the original to apply for probate of the other instrument, provided it does not revoke or alter the appointment.
    • The Registrar will require the original probate to be brought into court to be bound with the probate of the later instrument: Estate of Wilson (1991) 24 NSWLR 334, 341.
  • The normal procedure for to remove an administrator is to revoke the administration already granted and to make a supplemental grant to another person.
    • In general the court will be guided by the principles applicable to the revocation of a grant of probate when considering whether to revoke a grant of administration.
    • The difference is that in revoking a grant of probate the court is mindful of the fact that an executor has been chosen by the testator: Stanley v Stanley [2000] NSWSC 1133 at [10]; Grey v Youngson [2006] WASC 123; Pierpoint v Liston [2012] QCA 199.
  • A court will not revoke a grant of probate simply because all interested parties are of full age and so request.
    • However, if there is evidence disclosed that would warrant the grant being revoked, the court will act upon the consent: Estate Wight; Wight v Robinson [2013] NSWSC 1229.
  • Upon an application for revocation of a grant of probate, the interests of creditors and beneficiaries of the deceased need to be considered, as does the testator’s personal judgment in selecting the executor: Williams v Williams [2004] QSC 269 [45]; Baldwin v Greenland [2006] QCA 293 [44]–[45]; Bates v Messner (1967) 67 SR (NSW) 187, 191; Mavrideros v Mack (1998) 45 NSWLR 80 107F–108C; Estate Wight; Wight v Robinson [2013] NSWSC 1229 [18].
  • The considerations involved in the revocation of grant of probate differ from the removal of a trustee.
    • The interests of creditors as well as beneficiaries need to be considered as well as the testator’s personal choice of executor, whereas removal of a trustee involves only the interests of the beneficiaries: Estate Wight; Wight v Robinson [2013] NSWSC 1229 [22].
  • There is no limitation as to time as to when a grant can be made or revoked: Re Coghlan [1948] 2 All ER 68; Tobin v Ezekiel [2012] NSWCA 285.
  • What circumstances will be sufficient for a court to decline an application to revoke will depend on the individual.
    • It must be shown that the delay in bringing the application constituted an abuse of process of the court: Rasheed v Rasheed [1999] SASC 88 (Full Court of the Supreme Court of South Australia).
      • This will be the case where the delay has resulted in vital evidence being lost due to the death of witnesses or the loss of documents. See also Dickman v Holley; Estate of Simpson [2013] NSWSC 18.
  • The fact that estate moneys have been distributed and spent by beneficiaries has not been considered as a ground of prejudice that should bar a claim for revocation.
    • The possibility of such revocation was inherent in the decision to seek only a grant of probate in common form: Dickman v Holley; Estate of Simpson [2013] NSWSC 18 [143].
  • Other circumstances where the application to revoke a grant might be said to amount to an abuse of process would be where even if a fresh grant were made no action would be possible to recover property distributed pursuant to the revoked grant either on grounds of practicality or because such action would be statute-barred: Wills v Earl Beauchamp (1886) 11 PD 59; Re Coghlan; Briscoe v Broughton [1948] 2 All ER 68.
  • Revocation must be sought in separate proceedings and it is inappropriate to apply by notice of motion in the original probate proceedings: Nowacki v Estate of Szymonski (Unreported, Supreme Court of New South Wales, Windeyer J, 5 May 1995).
  • Where revocation is sought in respect of a grant of probate made in common form, the executor who obtained the grant and who is a defendant to the proceedings should seek probate of the disputed will in solemn form by way of cross claim: Kozak v Berwecki [2008] NSWSC 39 [5].
  • The same principles will apply both to revocation of a grant in solemn form and common form: Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786 [294].
  • Non-exhaustive matters which parties to the revocation of a grant might be expected to address — Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786 [320]:
    • Whether the grant under challenge is expressed to have been a grant in solemn form.
    • In summary terms, the size and composition of the estate of the deceased at time of death and at time of proceedings.
    • Whether any part of the estate has been distributed (and what, when and to whom).
    • The nature and foundation of the interest claimed in the estate by each applicant for a revocation order.
    • The nature and foundation of each competing interest.
    • The date and circumstances of each applicant’s first knowledge of the death of the deceased, the application upon which the grant was made, and the grant itself.
    • The existence and duration of any delay on the part of an applicant in challenging any will or grant.
    • Any explanation for such delay.
    • The evidence relied upon in support of the grant as made.
    • Any reasons published by the court in support of the grant.
    • The grounds relied upon by each applicant to contend that the grant should be revoked and any underlying will or wills should be held invalid.
    • The evidence available or reasonably thought likely to be available to each applicant in support of a prima facie case of invalidity of a will.
    • The nature and scope of any inquiries thought to be made by an applicant for the purpose of obtaining evidence in support of their application.
    • Whether there is a pending or anticipated claim for family provision relief made in relation to the deceased.