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11 October 2019

Pass the buck

Wills, Powers, Estates & Family Provision Claims
New South Wales

Asked

Estates – Executor unwilling to act

In an estates matter there are 'joint' executors under the will, one lives in Australia the other in the UK. The UK executor is happy for me to take direction from the Australian executor. Do they both have to sign the affidavit of executor filed with the court?

Answered

Thank you for the question.

If an executor does not wish to apply but is not prepared to renounce probate, r 78.55 of the Supreme Court Rules 1970 provides for a notice to be served on the executor requiring them to apply for probate. If they do not comply with the notice the other executors may apply without them. The application would be for a grant of probate that reserves the right of the non-applying executor to later apply for probate.

Otherwise, an executor may renounce. The following is an extract from the By Lawyers Probate (NSW) commentary on renunciation:

If an executor appointed by a will does not wish to proceed in the role, they must sign a renunciation, which is then filed with a subsequent application for grant of probate or letters of administration. A renunciation of probate must be in writing and filed in the registry with the application for a grant. 

If an executor has intermeddled, then the right to renounce the role is lost, and they may be compelled to apply for a grant.

The approved form for renunciation, UCPR form 123, is available on the By Lawyers Probate (NSW) matter plan together with a precedent letter to the executor enclosing the renunciation.

The form can be filed separately but is usually annexed to the affidavit of the continuing executor and filed with the probate application. 

Regards

Mentor