Probate Issues and considerations

Question 1

Question of Whether Will is Valid

Answer 1

Capacity
- at time of execution or deemed
- generally presumed unless challenged and proved

Intention
- not presumed if signed by someone else, blind/illiterate or suspicious circumstance (special attestation clause or affidavit)
- fear, force, fraud or undue influence?

Execution
- correct signing procedure
- witnesses also beneficiary (3 witnesses or codicil)
- witnesses valid

Has it been revoked
- marriage/ destruction / missing

Question 2

Issue of Beneficiary Dying

Answer 2

1. Predeceased
   - if at same time as testator younger survives older
2. Died within 28 days (only applies to spouse in intestacy)
3. Issue
   - goes to their issue (even unborn)
4. Jointly Held Property
   - survivorship

Question 3

Gift left to witness

Answer 3

Also if to witnesses spouse
- generally gift fails

1. Where there 3+ valid witnesses
2. Was it perfected in codicil

Question 4

Someone does not want to be an executor?

Answer 4

May lose gift if don’t accept office

1. Have they intermeddler in estate (done something normally done by PR: selling, paying off debts etc.)
2. Yes then have someone lodge citation to accept or refuse grant (maybe apply to be passed over)

NOT INTERMEDDLED

1. Renunciate (DONT apply for grant or intermeddle)

Question 5

Require information on who can be administrator?

Answer 5

1. Is there a minor beneficiary
   - if yes then 2 needed
2. follow statutory rules for entitlement (will annex vs no will)

Question 6

Someone wants to be PR but there are other prior entitlements.

Answer 6

1. They they don’t want to act then:
   - have they repudiated
   - must clear off (state they have prior entitlement but repudiated)
2. Haven’t renunciate
   - file citation to accept or refuse grant
3. Executor has intermeddler
   - file citation to accept probate
   - can then apply for court order to pass over
4. They want to act
   - do you think they lack capacity
   - then lodge citation with probate registry
   - lasts 6 months

Question 7

Existing PR has died / cannot act

Answer 7

Was executor
1. Is power being reserved by someone in probate

2. Have own executor (then chain)

Otherwise
- are there other PRs
- if not grant of bonds non

Question 8

Person does not think will is valid

Answer 8

Can lodge caveat

Question 9

Person does not want gift / wants to give it away

Answer 9

1. Can disclaim
   - if no residue may go back to them in intestacy
   - should do in writing
2. Deed of Variation
   - in writing, within 2 years of death, no monetary consideration

Question 10

Beneficiary unhappy with administration of estate by PR.

Answer 10

1. Personal Claim against PR for damages
   - excluded by will?
   - may get relief from court
2. Tracing
   - bona fide purchaser for value
3. Personal Claim against wrongful recipient

Question 11

Wants to claim reasonable financial provision?

Answer 11

1. 6 months
   - otherwise apply to court
2. Class of people
   - where there substantial contributions to reasonable needs
   - evidence as to why not provided for in will