Deceased estate and probate law

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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for 6 months from the date it is accepted by the Supreme Court of WA (Probate Division) for filing (unless removed or withdrawn).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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Finding a will

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The obvious places to look for a will of a deceased person are at the deceased’s home (perhaps in a safe, a filing cabinet, in the deceased’s office or in a folder of important documents), with the deceased’s solicitor (particularly the solicitor whom drafted the will which is often shown on the cover page of the will), at the Public Trustee’s Will Bank, with the deceased’s accountant, with the executor of the will (including say, where the executor is a trustee company such as Perpetual Trustees or Plan B) or at the Deceased’s bank in safe keeping (e.g. a safety deposit box or packet). If the original will cannot be found the presumption of destruction (that the testator destroyed the will with the intention of revoking it) may prevail. Amongst other things you may consider placing an advertisement for a lost will in Brief (the solicitors magazine) .


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Executors Commission

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A will may make provision for an executor to be paid commission.

Further, application may be made for executors commission to be paid pursuant to section 98 of the Trustees Act.

The amount of that commission shall not exceed 5% of the gross value of the trust property (section 98(2) Trustees Act) however in practice the amount of commission awarded may be much less.

The Trustees Act also provides for the payment of professional or business charges to professional or business trustees in certain circumstances (see section 98(5) Trustees Act).

Consideration should be given by an executor to them passing accounts for the estate at the Supreme Court of Western Australia before an application for executor’s commission is made.

Executors will not ordinarily be allowed commission unless their conduct is free from suspicion and there has been no neglect on their part which has prejudiced the estate unless the breach of trust is trivial (In the Will of Sherringham (1901) 1 SR (NSW) (B and P) 48 and Wheeler and Another and Hegarty and Others S Crt of WA Library no 940437.

(Valid 4/7/12)


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