EXECUTORS APPOINTMENT

CAN YOU REPLACE AN EXECUTOR ONCE THE TESTATOR/TESTATRIX (THE PERSON MAKING THE WILL) HAS PASSED AWAY

In short the answer to the question is, it is not possible to amend a Will after the testator has passed away. This is to be distinguished from alteration of a Will for a person who fails testamentary capacity. Section 21 of the Succession Act 1981 (as amended)(The Act) provides that the Court may on application make an order authorizing a Will to be made or altered in terms stated by the Court on behalf of a person without testamentary capacity or a Will or part of a Will to be revoked on behalf of a person without testamentary capacity.
The pre-conditions to that order are contained in Section 21 including under sub-section 2 making the order if the person in relation to an order is sought lacks testamentary capacity and a person is alive when the order is made and the Court has approved the proposed Will, alteration or revocation. Under sub-section 3 the Court has power to give necessary related orders or directions and may make an order on the conditions the Court considers appropriate under sub-section 4. Section 22 of the Act provides that the leave of the Court is required prior to making an order and leave is only granted on conditions that the Court considers appropriate. Section 23 provides the information that the applicant must provide to the Court including a written statement of the nature of the application made by the applicant and the reasons for making it, evidence of the lack of testamentary capacity, evidence as to the likelihood of the person acquiring testamentary capacity, evidence as to the size and the character of the person’s estate, the draft Will, evidence of prior Wills etc.
Section 24 provides the matters the Court must be satisfied to give leave under Section 22 that the applicant is an appropriate person, steps have been taken to allow representation of persons who have an interest in the application, reasonable grounds that the person does not have testamentary capacity, that the proposed Will is a Will that the person would have made had they had testamentary capacity etc.

However the Act does not provide any ability of the Court to alter a Will once the testator has passed away. So what happens if the executor is no longer living, has renounced or otherwise. In this regard the Will maintains validity and subject to the terms of the Will there should be no issue as to the distribution of the Will in accordance with its terms. It is however necessary to apply to the Court for the appointment of an administrator who is to be granted letters of administration with the Will. The application to the Supreme Court is known is an application for letters of administration with Will attached.

Section 603 of the Uniform Civil Procedure Rules 1999 provides the descending order of priority of persons who may apply for a grant of letters of administration with Will attached. These include a trustee of a residuary estate, a life tenant of the residuary estate, a remainder man of the residuary estate any other residuary beneficiary, a person entitled to the residuary estate, a specific or pecuniary legatee, a creditor or person who has acquired the entire beneficial interest under the Will or anyone else the Court may appoint.

Evidence must be provided to the Court as establishing the person’s priority and including evidence that each person in the higher order of priority is not entitled due to death, incapacity or renunciation (see sub-section 4). Accordingly whilst it is not possible to appoint an executor the administrator who is appointed from the grant of letters of administration will act in the same capacity and becomes the personal representative (which is the same as the executor) in the administration of the estate. Accordingly whilst it is not possible to appoint an executor the appointment of the administrator fills the role of the missing executor and has exactly the same effect.

The Court in the matter of Theophanous & Ors v. Gillespie [2001] QSC 177 (14 June 2001) held that in respect of the testator’s 24 August 1998 the testator had testamentary capacity and it was validly witnessed by the attesting witnesses and meets all requirements of the Succession Act. Further the Court noted under s 48(1) of the Succession Act 1981 it is provided that a grant of probate shall not be made to more than four persons at any one time. If more than four persons have been appointed as executors that section also provides that the grant will be made to the first four executors in the order in which they are named. Obviously it will be made only to those executors who apply for a grant. The Court made Orders accordingly.

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