Deceased estate and probate law

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Nationally Accredited Mediator

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Our Ms Elliott became a Nationally Accredited Mediator on 11 February 2013. If you seek her services call us on 92277441.


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What happens when an executor/administrator dies?

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An executor whom has taken probate of his/her testator’s will becomes executor not only of that will but of all wills in relation to which the testator was the sole or surviving executor (In the Will of Pirie (1884) 10 VLR (IP&M) 43, Re Gardner [1948] QWN41).

When a co-executor or co-administrator dies the incidents of that office including the responsibility to administer the estate devolve upon the surviving co-executor/s/administrator/s (Joliffe v Fera and others (1973) NSWLR 702).

When a sole administrator dies a new administrator should be appointed by the court by way of a grant of administration de bonis non (Maddock v Registrar of Titles (1915) 19 CLR 681).

Valid 24/10/12


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Probate Caveats

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Rule 33(1) of the Non-Contentious Probate Rules provides:

“A person having any interest in an estate in which application is being made for a grant or the sealing of a grant, and intending to oppose the application, shall either personally or by his solicitor enter a caveat in the Registry.”

Williams, Mortimer and Sunnocks in “Executors Administrators and Probate” state at para 31-01:

“The main object of a caveat is to enable a person who is considering opposition to a grant to obtain evidence or legal advice in the matter ….”.

The interest that the caveator must have is a sufficient interest of their own to protect such as is generally the case if they are a beneficiary of the estate under a relevant will or likely intestacy however care must be taken to analyse the interest in light of the concerns that the caveator holds.

A ceaveat should not be lodged vexatiously (without sufficient grounds and only to annoy). The caveator should have doubts genuinely entertained warranting investigation.

Opposition to a grant of probate or letters of administration may be on various grounds such as the invalidity of a will or the inappropriateness of appointing the person named in the will as executor.

In Western Australia probate caveats lodged for the first time by a person and not opposed are generally effective only for 6 months from the date it is accepted by the Supreme Court of WA (Probate Division) for filing (unless removed or withdrawn). If an extension is sought application needs to be made and a supporting affidavit filed. That application to extend can fail.

Legal advice with respect to probate caveats should be obtained before lodging a caveat. Legal proceedings may be commenced against a person lodging a caveat including to remove the caveat and to prove a relevant will in common form. Costs orders may be made in those and other proceeddings against the caveator in certain circumstances.

Valid 12/10/12

 


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