In the recent published reasons of Registrar C Boyle in Re Janette Eleanor Counsel; Ex Parte The Public Trustee  WASC 47, the Registrar has reminded practitioners that the obligation on an executor who decides to apply for Probate is to prove the Will, not to undermine it by introducing contrary evidence.
The executor’s duty is to propound the instrument which the testator has appointed him to propound. An executor cannot owe any duty to take legal proceedings to destroy the instrument from which he is appointed.
The Registrar noted that “in the first instance, it must be the obligation of the executor to form a judgment about whether to prove a will and in what form. It is the executor who must weigh up any objections that the deceased lacked capacity, or was unduly influenced, or that the will was a forgery. Having made that judgment, the executor must back it by making an application and adducing the evidence in support.”
The principle applies equally to both non-contentious applications and contentious proceedings. If the evidence is not clear, but an executor decides to prove the Will by grant in solemn form, then any party with a relevant interest has standing to oppose a grant. It is for any person who chooses to oppose to test the evidence and raise issues why the Will should not be proved.
The Registrar went on to say “It is not appropriate for an executor to make an application that equivocates or dithers, in effect saying to the court, ‘It is one thing or the other: you tell me’.”
Kott Gunning Recommendation
The clear message is that if you have a Will which attracts the presumptions of testamentary capacity, knowledge and approval, and due execution, then the application for Probate should just deal with the necessary procedural requirements and information. If someone wants to challenge your appointment leave it to them to raise the issues with the Court.
For more information about this Update or any Wills, Estates and Trusts issue please contact Greg Mohen on (08) 9321 3755. Find out more about Kott Gunning’s free Will and Estate Planning Health Check with a lawyer as part of our Lifetime Estate Support Service.
The information published in this paper is of a general nature and should not be construed as legal advice. Whilst we aim to provide timely, relevant and accurate information, the law may change and circumstances may differ. You should not therefore act in reliance on it without first obtaining specific legal advice.