Introduction
A grant of Probate, or administration, is a judicial act issued by the Supreme Court of New South Wales which provides authority to the executors who are named in the deceased’s will to deal with the assets of the deceased’s estate and to exercise the powers of the office of executors.
The executors must deal with the assets as directed in the deceased’s will.
Recent case
A grant of Probate can only be revoked in special circumstances. His Honour, Justice Hallen of the Supreme Court of New South Wales was required to determine whether a grant of Probate should be revoked in the case of Estate of Philip Mack (Deceased) [2022] NSWSC 1629.
Briefly, the facts of the case were as follows:
- Philip Mack died on 9 April 2019 (Deceased) and left a will dated 23 June 2016.
- The Supreme Court of New South Wales granted Probate to the primary executors named in the Deceased’s will (jointly) on 6 May 2019.
- On 14 October 2022 the primary executors made an application to the Court for a revocation of the grant of Probate and the issue of a fresh grant of administration (Application).
- The Application resulted from the fact that one of the executors desired to relinquish his position for personal and health reasons, the fact that the administration of the Deceased’s estate was likely to continue for an extended period and that it is in the best interests of the estate if he cease his role as joint executor.
- In the Application, it was also proposed that the solicitor who had acted for the deceased over many years (and was also named as a substitute executor in the Deceased’s will) be appointed with the remaining executor to continue the administration of the Deceased’s estate.
- All the beneficiaries named in the Deceased’s will consented to the making of the Orders sought in the Application.
General principles
A grant of Probate is not a final judgment and it is open to a Court (exercising probate jurisdiction) to revoke any such grant upon a proper case being established.
An important aspect to be noted is that the mere desire of an executor to whom Probate has been granted and/or the consent of those beneficially entitled under the will, is not a sufficient basis for the Court to revoke a grant of Probate.
When deciding whether to make the Orders, his Honour repeated the established law that the Court must have regard to the reasons why a revocation of a grant of Probate is being sought, the due and proper administration of the estate and the interests of the parties beneficially entitled to the estate (see The Estate of Erminia Agnes Rogers v Rogers [2009] WASC 358).
Outcome
Based on the evidence before the Court, his Honour was satisfied that it was appropriate to revoke the grant of Probate issued on 6 May 2019 and make an order granting letters of administration with the Deceased’s will annexed.
While there was no suggestion of improper conduct by the retiring executor, his Honour said that the revoking of the grant of Probate does not relieve the retiring executor from liability, if any, for conduct occurring prior to the making of the revocation order.
Seek advice early
It is important that you seek advice early if you are considering making an application for a grant of Probate or to revoke a grant of Probate issued by Court as there are governing rules and multiple factors which have to be taken into account prior to the making of any such application.
Costin Stan at FCW Lawyers is a Contested Estates practitioner and is always wiling to help you understand what your rights are and will always guide you to make the best decisions.
