Topic 7: Administration of Deceased Estate

Question 0

Would it be prudent to always obtain a grant of probate?

Answer 0

No, it will depend on the requirements of the institution.
Obtaining a grant of probate where it is unnecessary would not be reasonable expenditure and the Trustee can’t indemnify for those costs.

Question 1

What is a grant of probate?

Answer 1

Most of the time, the will can be used by the executor as authority to deal with the property. However, some institutions require a grant of probate before handing over the property.

Question 2

How can a person get a grant of Probate?

Answer 2

1. One or more executors will apply to the Supreme Court to obtain a grant of probate
2. The have to advertise their intention to apply for a grant in case any one objects such as executors in a newer will or people wishing to challenge the will itself.

Question 3

What are letters of administration?

Answer 3

This is where the deceased dies intestate with no will to appoint executors.
In such cases, a person willing to act to administer the estate applies to become an administrator.

Question 4

How does a person obtain Letters of Administration?

Answer 4

An application to the Supreme Court for Letters of administration.
If successfully obtained, they are then known as administrators

Question 5

What does the term ‘personal representative’ include?

Answer 5

It includes both:

1. Executors; and
2. Administrators.

Question 6

What if the trust estate is dealings with land?

Answer 6

A grant of probate is not necessary. Because there is the Torrens Title system in Australia, the Land Title Act has it’s own provision: S111 LTA.

Question 7

What is the procedure for a personal representative to apply to be registered as personal representative of deceased registered owner?

Answer 7

Under s111 LTA they must:

1. Fill out a form
2. Supply the registrar with appropriate supporting evidence such as will and certificate of death
3. Registrar will consider whether person should become registered.

Question 8

Why is it necessary to become the registered owner?

Answer 8

• It is necessary so that the trustee can deal with the property in accordance with the trust. They need to become the registered owner so they can get the trust in.
• s111(3) LTA - they have the same rights, powers and liabilities as a person who is granted probate.

Question 9

Where does an executor get authority to act from?

Answer 9

s45 Succession Act:

(1) - vests in executor; and
- if more than one, then vests as joint tenants
- if no executors willing to act, then vests in public trustee
(2) - where a person has a grant of probate or Letters of administration, this overrides the will and it will vest according to the grant of probate or letter of administration even where the will states more than one executor but the grant of probate is given only to one.

Question 10

Which case is an example of the grant of probate overriding the will?

Answer 10

Re Jensen

Question 11

What are the facts of Re Jensen?

Answer 11

• Lindt Paul Jensen (JP) was the testator and he appointed two of his sons as his executors: Lindt Paul Jensen Junior (JR) and Richard Ashton Jensen (RA).
• The family was members of an exclusive christian group which had two branches: the strict branch which isolated itself from society and the less strict branch.
• Together with RA, JP left the strict branch to join the less strict branch.
• They were subsequently labelled heretics and remaining members in the strict branch didn’t talk to them.
• JR was part of the stricter branch while Ra was in less strict branch, they didn’t talk.
• RA applied for probate while other members object against it

Court held:

• Even though will specified JR and RA as executors, judge held grant of probate to RA alone.
• The objections weren’t raised to do with RA’s competence, but rather were based on religious difference
• In fact Ra was an accountant and the father heavily relied on RA and also had a close relationship.
• Judge relied on evidence from a third son : Allan Leslie Jensen (AL) who had also defected to less strict branch. He said the father told him that if possible, he would like RA and JR to be executors, but if not, only RA was to be executor
• Judge accepted AL’s evidence and granted probate to RA.

Question 12

Can the judge remove an executor? And what other powers does the court have?

Answer 12

Williams v Williams: yes the judge has a power to remove an executor.
Furthermore a judge can:
1. Make an order for more convenient administration of any property in estate: s6(4) Succession Act
2. Make any order under the Trust Act: 6(4) Succession Act
3. Court has power to appoint new trustees: s80 Trust Act

Furthermore, the court has inherent jurisdiction to remove trustees: Whitehouse Case.
Therefore the Supreme Court can remove an executor for the same reasons they can remove a trustee.

Question 13

What are the facts of Williams v Williams?

Answer 13

• Executor was deceased person’s father who was making unauthorised withdrawals of estate funds.
• He refused to disclose withdrawals and behaved in an arrogant and high handed manner

Court held:
1. Removal of him as executor was for ‘more convenient administration of property of an estate of a deceased person’.

Question 14

What are the duties of the personal representatives?

Answer 14

1. These are located in s52 Succession Act (1)(a)-(e)
   These only apply to personal representatives and not ordinary trustees.
2. s57 Succession Act, debts which have to be paid first.

Question 15

What remedy can beneficiaries get if the trustee breaches it’s duties under s52(1) Succession Act?

Answer 15

They can apply to the court for damages and interest under s52(2).