​Executors - renunciation, reserving leave, duties, appointment

• Renouncing as executor (form 123) or reserving leave to apply, before a grant is made
  
• If the will doesn't allow the executor to renounce
  
• The sole executor and sole beneficiary has lost capacity
  
• An executor is tardy or seems unwilling or is unable to apply for a grant of Probate
  
• Removal of an executor after a grant has been made
  

More complex applications for Probate

• An application for Probate where the original Will is lost
  
• An application where the original Will has been found after Probate of a copy will is granted
  
• An application where a later Will is found after Probate has been granted
  
• Informal "wills" or informal alterations to a will – ss 6, 8, 14 Succession Act 2006
  
• Where a beneficiary signed as a witness to the will – s 10 Succession Act 2006
  
• Rectification – where the will does not carry out the testator's intentions – s 27 Succession Act 2006

Executors – renunciation, reserving leave, duties, appointment

Renouncing as executor or reserving leave to apply, before a grant is made

The decision to accept the role of executor should be considered seriously as the appointee must fulfil the responsibilities of the office and comply with all legal requirements. The executor has a duty to collect all assets, arrears of rent and unsecured debts, keep proper accounts, to preserve the deceased's assets, to distribute the estate in accordance with the Will and to administer the estate in accordance with law. Unless the estate is complex it is expected that is fully administered within one year of the date of death. If the executor(s) does not fulfil his or her obligations there may be legal consequences against them personally.

If an executor appointed under a Will is unwilling to take on the role, they can renounce probate prior to a grant issuing, as long as they haven't dealt with the estate property (called intermeddling) or they can request that leave to apply at a later date is reserved: see Part 78 rule of the Supreme Court Rules 1970. If the non-joining executor applies at a later stage (after the grant) they would apply for "double probate". The grant page (form 112) for double probate is attached to the front of the original grant.

If an executor is unwilling to apply for probate, prior to renouncing they should check the wording of the Will to ensure that another person is entitled to take their place. Many Wills are worded so that the substituted executor(s) can only apply if the instituted executor is deceased. If the sole executor is also the sole beneficiary, the wording of the will may result in no other person being entitled to apply.

If the wording of the Will allows an instituted executor to be substituted, for example, the instituted executor is "unable or unwilling", then the substituted executor(s) can apply. In this case the executor can file a renunciation, a letter reserving leave for them to apply at a later stage or, in cases where the instituted executor has lost capacity, the substituted executor must file an affidavit annexing medical evidence.

If the renouncing executor is one of several instituted executors then the remaining instituted executor(s) can usually apply, but again, this will depend on the wording of the Will. If the renouncing executor is the only surviving instituted executor, then the substituted executor(s) may only apply if the wording of the Will allows for it.

If the Will doesn't allow the executor to renounce

If the Will does not allow for the executor to be substituted then one or more of the beneficiaries under the will may apply for letters of administration with the will annexed. The Court prefers to make a grant to the beneficiary with the major interest.

The applicant needs to serve notice on all beneficiaries under the will or obtain their consents: see Part 78 rule 19 of the Supreme Court Rules 1970. If the consents or notices do not include a recital to dispense with an administration bond, the applicant will need to file an administration bond with two sureties to the value of the beneficiaries' entitlement. Please note that consents must be obtained from the legal guardian or tutor of minors or persons lacking capacity before the bond can be dispensed with.

The Registry will accept a renunciation of probate before an application for probate has been filed. Generally however, the executor renouncing probate will give the form to the person applying for a grant and the renunciation form is filed with the application for probate or administration with the will annexed.

If an executor has renounced probate this information must be included in the qualifications when publishing a Notice of Intention to Apply for Probate, the Summons, the Affidavit of Executor/Applicant and under "Basis of Grant" on the grant document (form 112).

If the sole executor and sole beneficiary has lost capacity

If the sole executor is also the sole beneficiary and they have lost capacity, an application may be made seeking letters of administration with the will annexed for the use and benefit of the executor by one of these people (or groups of people):

1. The executor's financial manager (if one has been appointed).
2. The executor's enduring power of attorney (if one has been executed).
3. The executor's legal personal representative (the person named as executor in their will).
4. Those entitled to the executor's estate on intestacy.
5. An appointment of the Trustee and Guardian.

The above list is in order of priority, so for example, a power of attorney may not apply if a financial manager has been appointed. Any such application should be accompanied by evidence of the nature and extent of the executor's incapacity (for example a doctor's letter).

In cases where the instituted executor is replaced because they have lost capacity the recital under Basis of grant (on form 112), should state "Letters of administration with the will annexed. [Financial manager/attorney/legal personal representative] of the deceased. For the use and benefit of [name of instituted executor], limited until [name of instituted executor] recovers from his/her disability and comes in and obtains a grant". It does not matter that the person is unlikely to regain capacity.

An executor is tardy or seems unwilling or is unable to apply for a grant of Probate

The Court always checks that a probate application is made by all instituted executor(s) named in the Will, and any executors who are entitled to apply but do not join the application must be accounted for.

If one of a number of executors refuses to join an application for probate the remaining executors may apply and reserve leave to the non-applying executor to apply at a later date. They must serve notice on the non-joining executor prior to filing of the application and file an affidavit of service of notice with the application: see Part 78 rule 17 of the Supreme Court Rules 1970.

If all instituted executors do not apply for probate the beneficiaries have two options:

1. If an executor(s) fails to apply for probate within three months of the death of the deceased, a beneficiary(s) may, after obtaining consents or serving notice on all other beneficiaries under the will, apply for letters of administration with the will annexed pursuant to s 75 of the Probate and Administration Act 1898.

If one of the executors is unable to apply or renounce due to lack of capacity then medical evidence will need to be provided. Similarly, if an executor is overseas or cannot be located when an application for a grant is being made, evidence about this must be provided. In such circumstances the application should be for a grant of probate that reserves leave for the non-applying executors to apply later for probate.

Removal of an executor after a grant has been made

Once a grant has been made an executor cannot renounce probate and must not delegate their executorial duties to another person. An appointed executor or administrator may however, by deed, appoint the NSW Trustee and Guardian or a trustee company to be executor or administrator in their place or as co-executor or administrator. (See s 75A of the Probate and Administration Act 1878). The deed must be filed with the Court.

In all other respects the only way to remove an executor or administrator after a grant has been made is upon the application of the other executors or beneficiary(s). The Court, if satisfied that the executor or administrator should be removed will make an order revoking the grant. If the application is not opposed it can be dealt with by a Registrar in chambers.

If all executorial duties have been performed and the executor is simply holding the assets as a Trustee, he or she may retire (as Trustee) and appoint a new Trustee pursuant to the Trustee Act 1925. The Court does not need to be informed of this.

More complex applications for Probate

An application for Probate where the original Will is lost

If the original Will was last in the hands of the solicitor they may swear an affidavit as to its loss. If the executor or another person had possession of the original will after the deceased's death and it has subsequently been lost, they may file an affidavit to this effect.

If the location of the original Will at the time of the death of the testator is unknown, it is assumed that the Will was last in the possession of the deceased and that he or she destroyed it with the intention of revoking it. This is called the presumption of destruction animo revocandi and the applicant needs to file affidavit evidence rebutting the presumption. The affidavits should depose to such things as the relationship between the deceased and those who benefit under the Will, any changes in the relationship, any statements made by the deceased and the extent to which the deceased's conduct towards them remained consistent with them being beneficiaries.

An affidavit should be filed which deposes to searches for the Will in the personal effects of the deceased, and enquiries for a Will with the NSW Trustee & Guardian and the banks and solicitors of the deceased. The applicant should also provide an undertaking that they will prove the original Will if it is subsequently found.

forms 134 and 135. An affidavit naming the persons entitled under intestacy and an affidavit of service of the notices must be filed.

The grant document (form 112), under Basis of grant should refer to the will as a "copy will" and that the grant is "limited until the original will is proved".

An application where the original Will has been found after Probate of a copy will is granted

If the original Will has been found following a grant of probate of a copy will, the applicant must:

(1) File a summons for cessate probate to prove the original will. If the original will is identical to the copy Will already filed, only an administration fee is charged, equivalent to the fee for an exemplification plus any cost of retrieving the file. If the original will is different, eg contains handwritten amendments, then the filing fee for a new summons is required;

(2) File an affidavit setting out the circumstances of the recovery of the Will;

(3) File the original grant; and

(4) File two draft grants (form 112).

An application where a later Will is found after Probate has been granted

If a later Will has been found after a grant of probate, the following applies:

(1) File a summons for probate (form 111), include a recital for revocation of the earlier grant and pay the relevant fee. A separate summons for revocation is not required. The usual filing fee for a summons for probate applies;

(2) File the original grant of probate with the application;

(3) The affidavit of executor must describe the circumstances surrounding the finding of the later will, whether any assets have been distributed which are not in accordance with the terms of the later will and if so, what steps have been take to rectify the situation; and

(4) The executor must serve notice on, or obtain the consent of, all beneficiaries named in both Wills to the application. An affidavit of service must be filed.

The Court will deal with the applications simultaneously. Please use the earlier probate case file number for your new application so that all proceedings involving the estate are contained in the one file. You can email the probate department and request that your new online notice is entered in the original case number. The usual fee applies.

If a revocation of a grant is opposed the matter will be listed in Court. Most other matters will be dealt with by a Registrar in chambers.

Informal "wills" or informal alterations to a will – ss 6, 8, 14 Succession Act 2006

A Will which is not signed by the testator in the presence of two witnesses present at the same time, who then attest and sign the Will in the presence of the testator (see s 6), is not called a Will until such time as the Court declares that it is (see s 8). Until that time it is referred to as an informal document and the applicant must prove that the deceased intended the document to form his or her Will.

Any alterations to the Will which are not initialled by the testator and both witnesses at the time of execution or, if made at a later date, are not executed in accordance with s 6 of the Succession Act 2006, do not form part of the Will unless the Court declares them to be (see s 14). Until that time they are referred to as informal alterations and the applicant must prove that the deceased intended the alterations to be included in his or her Will.

If an executor or applicant seeks to propound an informal document or informal alterations to a Will (or codicil) the summons must seek a prayer of relief for a declaration under s 8 of the Succession Act 2006, that the document [annexed and marked "A" to the summons] is the will of the deceased or that the alterations [annexed and marked "A" to the summons] form part of the Will of the deceased.

which names all persons affected, both beneficially and adversely, by a grant in accordance with the document propounded. They must serve notice on, or obtain the consent of, all affected persons in accordance with rule 42. Affected persons are beneficiaries under the informal document and beneficiaries under any previous will, or if there is no previous will, persons who would be entitled under intestacy. Service of notice may be to the last known address of the affected person. The applicant must also file an affidavit of service of all notices.

An executor is not under a duty to prove an informal document but they are under a duty to disclose it to all affected persons, including those beneficially and adversely affected, and to the Court. They must serve notice or obtain consents in accordance with rules 14 and 42 (as above).

Where a beneficiary signed as a witness to the will – s 10 Succession Act 2006

Section 10 of the Succession Act 2006 provides that any gift under the Will is deemed to be void if the intended beneficiary is one of the two witnesses to the signing of the Will.

lf all of the beneficiaries who would benefit directly from the avoidance of the gift consent to distribution in accordance with the will, and they have the capacity to give that consent, the gift is not void. If the avoidance of the gift creates a partial intestacy, then those who would be entitled under intestacy must provide their consent to the gift.

If those consents cannot be obtained an application can be made to the Court pursuant to s 10(3)(c). The applicant must satisfy the Court that the testator knew and approved of the gift and it was given or made freely and voluntarily by the testator.

Rectification – where the will does not carry out the testator's intentions – s 27 Succession Act 2006

Section 27 allows rectification of a Will if it fails to carry out the testator's intentions due to:

1. A clerical error, or
2. It does not give effect to the testator's instructions.

The summons should seek rectification of the will (or codicil), setting out the exact wording of the orders sought, and probate of the rectified Will. The application must be made within 12 months or an extension of time must be sought in the summons.

There must be clear evidence of what the testator's intentions were at the time of making the will. This evidence is usually found in the solicitor's file notes when taking instructions for the will. An affidavit should be sworn by the solicitor who took instructions for the Will and any person in the firm responsible for drafting it.

In cases where the deceased drafted their own will or used a will-kit, it can be more difficult to succeed under the section as the matters in (a) or (b) above must be shown to be the reason for the error.