LAWS4236 Lecture Notes - Lecture 5: Intestacy, Testator, Public Trustee
TOPIC 5 PROBATE AND LETTERS OF ADMINISTRATION
Required Reading: Croucher & Vines (4th ed) 16.1, 16.4, 16.8, 16.11-16.12C, 16.14, 16.17, 16.19-
16.23C, 16.28-16.33
In probate application itself, someone would raise an issue whether it was executed properly. Topics
3 and 4 are reasons why it would be raised.
This topic is mechanics of admitting the probate.
1. The Will Appoints Executors (Probate)
If you have a valid will that appoints an executor, the executor is given a grant of probate by the court.
Where a will doesn’t appoint an executor or the executor is unable to act for some reason, in that
situation the court will appoint an administrator. This is called letters of administration with the will
annexed.
Or where there is an intestacy (no will or no valid will), court would appoint an administrator and give
letters of administration.
Generic term of all of those people is a personal representative.
What is the relevant jurisdiction?
Where they lived at his/her death. Complicated where they had assets in more than one jurisdiction.
May be necessary to apply for probate in all of those jurisdictions in which the testator had assets.
Executed appointed by will could disclaim the executorship at the earliest opportunity, certainly
before doing anything that could be construed as administering the estate. If you do commence the
administration, you are going to be liable in respect of the breach of any duties. Not going to relieve
you from any liability.
Possible for someone to be appointed by implication:
- Implied appointment (‘executors according to the tenor’)
Tsagouris v Bellairs [2010] SASC 147 [CV 16.12C pp 704-707]
Testator had a hand written will. Will did not appoint an executor, not drafted by a
solicitor. 2 of the beneficiaries were given certain responsibilities by the terms of the will
e.g. to look after the house until it was sold, to make sure it is not sold to the Italians next
Document Summary
Required reading: croucher & vines (4th ed) 16. 1, 16. 4, 16. 8, 16. 11-16. 12c, 16. 14, 16. 17, 16. 19- In probate application itself, someone would raise an issue whether it was executed properly. 3 and 4 are reasons why it would be raised. This topic is mechanics of admitting the probate: the will appoints executors (probate) If you have a valid will that appoints an executor, the executor is given a grant of probate by the court. Where a (cid:449)ill does(cid:374)(cid:859)t appoi(cid:374)t a(cid:374) e(cid:454)e(cid:272)utor or the e(cid:454)e(cid:272)utor is u(cid:374)a(cid:271)le to a(cid:272)t for so(cid:373)e reaso(cid:374), i(cid:374) that situation the court will appoint an administrator. This is called letters of administration with the will annexed. Or where there is an intestacy (no will or no valid will), court would appoint an administrator and give letters of administration. Generic term of all of those people is a personal representative. Complicated where they had assets in more than one jurisdiction.
