The Supreme Court has the power to revoke (cancel) grants of probate. Probate may be revoked where there are issues with the will or the executor to whom probate was granted.
Grants are often revoked when it is necessary to remove an executor so that an estate can be properly administered. For example, if an executor is failing to call in and secure assets, is unreasonably and significantly delaying the administration of the estate, or failing to keep accounts, a beneficiary may wish to make an application to have them removed from their position.
If the application is successful, the Court will cancel the old grant and issue a new one.
But they won’t do it lightly. It must be shown that the grant has become ineffective or prevents the proper administration of the estate.
So when may a Court revoke a grant of probate?
Examples include where the executor was:
- of bad character, such a being convicted of manslaughter of the will-maker (“testator”);
- neglecting his or her duties;
- overseas;
- sick;
- physically or mentally incapable;
- unable to be located;
- in a serious conflict of interest (and not just a conflict arising from the terms of the will).
A grant may also be revoked where it was made in error, such as where a later valid will was found, where the grant was made through fraud, or where the will was deemed not to be valid for lack of capacity of the testator, for example.
The Court will not revoke a grant purely because the executor wishes or because all interested persons consent.
The Court places much importance on the intentions of the testator in choosing his or her executor, so there must be strong grounds for the executor to be removed. Despite the importance placed on the considerations of the testator, this will not override the need and obligation for the proper administration of the estate and the interests of the beneficiaries.
If you are having concerns or issues with an executor or administrator of an estate, or are an executor or administrator yourself and concerned that you might be at risk, contact us on 13 43 63 to speak with one of wills and estate lawyers.