Wong on Family Law

Select topics on Probate in Australia

Work-in-progress, 12 June 2025 (last updated)

[A] Testamentary Discretionary Trusts

• Family Provision; deceased estate; Trustee / Executor acting for own their reasons rather than in accordance with the testator's testamentary wishes for the operation of the testamentary discretionary trust: William Bkassini v Sonya Sarkis [2017] NSWSC 1487, [312], [376], [393] (Robb J in Eq): "[284] ... William receive the benefits expressed in her memorandum of wishes, and that the reason why she created the testamentary discretionary trust was that she wanted to preserve the capital of her estate for her children and grandchildren, and in particular wanted to avoid placing the capital at risk by giving it to William in circumstances where it could be dissipated by reason of William’s gambling practices.  [285]  The deceased’s wishes have been thwarted by the decision of Sonya to exercise her discretionary power as trustee to cut off William entirely from the receipt of any benefits from the trust, and furthermore to exercise her statutory right to obtain orders for the sale of both properties. ... [312]  Of course, the present is not a case where the testator has judged that the provision to be made for a beneficiary should be reduced by reason of that beneficiary’s conduct. It is a case where a testamentary provision has been chosen by the deceased notwithstanding any shortcomings in the beneficiary’s conduct and the intent of that provision has failed, and where the question arises in the context of the deceased’s executor and trustee trying to deny any provision to the beneficiary for her own reasons, rather than in upholding the testamentary wishes of the deceased. … [376]  I concluded earlier that the deceased did want William to enjoy the benefit of her estate during his life but wanted to ensure that he did so in a manner that preserved her capital for the benefit of her children. I have not accepted Sonya’s argument that the essence of the deceased’s testamentary intention was that William should only enjoy such benefits from her estate as Sonya for her own reasons determined from time to time were suitable. … [393]  The deceased’s wishes should be given paramount effect in preference to the wishes of Sonya who, I am satisfied, has exercised her trustee’s discretion for her own reasons after many years of compliance with the wishes expressed by the deceased".

> "William Bkassini v Sonya Sarkis 1/11/17 – Value of Estate/ Notional Estate – $880,000 Plaintiff, the widow of the deceased, made a claim after almost whole estate was left to one of 3 children on testamentary trust intended to benefit the Plaintiff. Trustee used discretion to cut Plaintiff off from any benefits after he took up with another woman. Plaintiff owned 2 properties with deceased and lived in one. Plaintiff awarded a “portable” life interest in deceased’s half share in one property and costs.": 'Summary of 2017 Family Provision Cases' (AS Laumberg, 2018) <https://aslaumberg.com.au/summary-of-2017-family-provision-cases/>, archived at <https://archive.is/YDBIi>.  

• Craig Birtles, 'Will Drafting from a Litigator's Perspective' (Paper, 2023) <https://twowentworth.com.au/wp-content/uploads/2024/05/C-Birtles-BMLS-paper-Will-drafting-8.9.23.pdf>, archived at <https://perma.cc/V5Z5-T49F>.  

> Family provision :"... “Provision for eligible persons may be inadequate or improper in form as well as, or as distinct from, in quantum. Thus, provision which is dependent upon the exercise of a discretion by the trustee of a discretionary trust will often, though not invariably, be inadequate or improper: Re WTN (NSWSC Unreported, 3/7/59, McLelland CJ in Eq); referred to in [1959] 33 ALJ 240 Gregory v Hudson (No 2) (New South Wales Supreme Court, Young J, 18 September 1997, unreported).” The above passages do that mean that all testamentary trust structures will be found to not provide adequate and proper provision for an eligible person. The answer to that question depends on the terms of the trust, the financial circumstances of the eligible person, and the other relevant s 60(2) Succession Act 2006 (NSW) factors.". 

• Craig Birtles, 'War on Trusts' (Paper, Two Wentworth Succession Conference, March 2024) <http://twowentworth.com.au/wp-content/uploads/2024/05/C-Birtles-Paper-War-on-Trusts-23.3.24.pdf>, archived at <https://perma.cc/ZZY9-28D3>.  

[B] Appointment of a Firm of Solicitors as Trustee and Executor

• Re Draper [2022] SASC 46 -- wording of appointment clause

• ASCR 2015, r 12.4: 

>  ** 'Solicitors as Executors - Questions and Answers' (NSW Law Society, Paper) <https://www.lawsociety.com.au/sites/default/files/2018-10/files.pdf>, archived at <https://perma.cc/T9LF-EZ67>. -- template letter.

> 'When commission is awarded to executor in a probate proceedings' in C Sparke, U Stanisich and I Kallweit, Wills Probate & Administration Vic (LexisNexis, 2019) [50,025]-[50,055] <https://perma.cc/CN86-337P>.  

> Carol McOmish, 'Solicitors’ and executors’ commission: dangers, pitfalls, recent developments, case law and practical issue affecting lawyers' (Svenson's List, Paper) <https://svensonbarristers.com.au/wp-content/uploads/2017/07/C_McOmish_Solicitor_Executors_Fees_Southern_Solicitors.pdf>, archived at <https://perma.cc/5Y77-Z7YA>.  

> 'Appointing a Solicitor as your Executor: Practical Considerations' (De Groot Lawyers, Webpage) <https://degroots.com.au/appointing-a-solicitor-as-your-executor-practical-considerations/>, archived at <https://archive.is/5M1vV>: "... It should be stressed that it is not unprofessional or unethical for a solicitor to accept an appointment as executor.  However, the Australian Solicitors Conduct Rules prescribe special requirements to be followed before the appointment is made.  A letter must be given to the will-maker addressing the costs and solicitor’s commission that might not be payable if family or friends are appointed.  This requirement will also apply where a codicil is made to the will or another will is proposed (where the solicitor’s appointment will continue). ..."

> Russell Cocks, 'Solicitor - Executor's Commission 1 - Horns of a dilemma' (ByLawyers, 1 January 2010) <https://obiter.bylawyers.com.au/solicitor-executors-commission-1/>, archived at <https://archive.is/cbtnI>. 

> Russell Cocks, 'Solicitor – Executor’s commission 2 – A fiduciary duty' (ByLawyers, 1 January 2010) <https://obiter.bylawyers.com.au/executors-commission-a-fiduciary-duty-2/>, archived at <https://archive.is/7He7N>. 

> Box et al, 'The Solicitor-Executor and Remuneration Clauses' (2002) 76(8) Law Institute Journal 77. 

[C] Executor de son tort; acting as executor, administering estate at time prior to probate: 

• intermeddling preclude renunciation, personal liability, order to compel probate: see well-articulated discussion in Re Estate Kleinlehrer, Deceased [2024] NSWSC 648 <https://jade.io/article/1076993>; cf s 54(2), Succession Act 1981 (Qld). 

• 'Can an Executor Renounce Their Appointment? (Qld)' (GotoCourt, Webpage) <https://www.gotocourt.com.au/can-an-executor-renounce-their-appointment-qld/>, archived at <https://archive.md/zo8E9>.  

• ‘Executors De Son Tort’ (Gregson & Assoc, Webpage) <https://www.gregsonandassociates.com.au/executors-de-son-tort/>. 

• "In all Australian jurisdictions executorial status continues to be derived not from a grant of probate, nor from any legislative provision, but solely from the will under which the appointment is made. Many small, and even some larger, estates of deceased persons may 1 lawfully and properly be administered at common law by an executor named in the deceased's will without a grant of probate. This may be the case in all Australian jurisdictions, notwithstanding that in new South Wales, Western Australia, the Australian Capital Territory and the Northern Territory an executor's legal title to the estate assets derives, by statute, from the grant of probate and not from the will or by statute as elsewhere. Although in these jurisdictions the Public Trustee may have some legal capacities incident to a bare or notional statutory title in the absence of a grant of probate to an executor, this title, being bare or notional, exists primarily for the benefit of the executor. It is submitted that the executor without a grant in these jurisdictions has lawfully authority to direct the Public Trustee to consent or, where necessary, assent to transfers or transmissions of estate assets to third persons. It is not legally correct to conclude that in the grant-title jurisdictions the position of an executor without a grant has been assimilated to that of an administrator or a mere potential administrator. The office of executor is historically and juridically fundamentally different from that of an administrator and remains so, except for incidental statutory changes, throughout Australia.": Neville Crago, 'Executors of Unproved Wills: Status and Devolution of Title in Australia' (1993) 23 Western Australian Law Review  235, 249-50 <https://www8.austlii.edu.au/au/journals/UWALawRw/1993/21.pdf>. 

[D] Probate - Grants of Representation

• 'Troublesome Estates: Limited, Urgent and Unusual Grants of Representation' (Suzanne Lyttleton Lawyers, 23 January 2024) <https://www.suzannelyttletonlawyers.com.au/post/troublesome-estates-limited-urgent-and-unusual-grants-of-representation>, archived at <https://archive.is/jWG3l>. 

[E] Letters of Administration with Will

• LA or Probate, see <https://www.armstronglegal.com.au/contested-wills/probate/difference-between-grant-of-probate-and-letters-of-administration/>.

• Renunciation of Executor(s): 

> Priority for administration with Will: UCPR 1999 (Qld) r 603. 

> First executor renounced administration - Second executor could not be contacted - Applicant sought letters of administration: Re Krepela [2024] QSC 281, [25]: "I conclude that: (a) the will of Karel Krepela made 21 September 2023 is his last will; (b) the two named executors, Michael Wright and Donna Hromek, have renounced any right to administration of the will; (c) Vladislav Valis is one of two joint residual beneficiaries; (d) he has priority as a residual beneficiary; and (e) letters of administration ought to be granted to him."

> where the solicitor renounced his right to probate – where the solicitor closed his practice – where there was no successor – where the beneficiaries renounced their right to apply for letters of administration – where the applicant was a friend of the testator – where no one had priority over the applicant: Re Saunders (dec'd) [2023] QSC 64.  

>  Statutory framework - Where executors and trustees were nominated in the testator’s will — Where those executors and trustees renounced - applicant for letters is a solicitor: "30. Both William and Ellie have renounced probate. Therefore, by s 46 of the Succession Act 1981, their right to probate ceases. It follows then that the estate is left without an appointed legal personal representative. By s 6 of the Succession Act 1981, and s 80 of the Trusts Act 1973, the court has jurisdiction to grant letters of administration and appoint a new trustee. 31. Rule 603 of the Uniform Civil Procedure Rules 1999 provides the order of priority of persons to whom letters of administration may be granted. Rule 603 provides: “603 Priority for letters of administration with the will (1) The descending order of priority of persons to whom the court may grant letters of administration with the will is as follows— (a) a trustee of the residuary estate; (b) a life tenant of any part of the residuary estate; (c) a remainderman of any part of the residuary estate; (d) another residuary beneficiary; (e) a person otherwise entitled to all or part of the residuary estate, by full or partial intestacy; (f) a specific or pecuniary legatee; (g) a creditor or person who has acquired the entire beneficial interest under the will; (h) any one else the court may appoint. (2) The court may grant letters of administration with the will to any person, in priority to any person mentioned in subrule (1). (3) If 2 or more persons have the same priority, the order of priority must be decided according to which of them has the greater interest in the estate. (4) Each applicant must establish the person’s priority by providing evidence that each person higher in the order of priority is not entitled to priority because of death, incapacity or renunciation. (5) A document providing evidence for subrule (4) must be an exhibit to the affidavit in support of the application. (6) The applicant need not establish priority for a person equal to or lower than the applicant in the order of priority.” [32] Mr Klatt falls within r 603(1)(h). By r 603(4), in order to obtain a grant, Mr Klatt must show that all persons higher in the order of priority are not entitled to a grant. [33] Here, there is no trustee of the residuary estate.14 There is no life tenant of any part of the residuary estate.15 There is no remainderman of any part of the residuary estate.16 There is no residuary beneficiary entitled to apply because the three beneficiaries have renounced their right to apply.17 There is no suggestion of any full or partial intestacy and therefore there is no person entitled to the estate in intestacy.18 There is no specific or pecuniary legatee19 and no creditor or person who has acquired the entire beneficial interest under the will.20 [34] Mr Klatt, therefore, has priority. All the residuary beneficiaries have been alerted to the application and consent to it. The rules in relation to the giving of notice of intention to apply for a grant of letters of administration have been complied with and no caveat has been filed in relation to the estate. [36] Mr Klatt is a solicitor experienced in the administration of estates. He has sworn that he is not aware of any matter which might bear adversely on the appropriateness of his appointment. [37] Letters of administration with the will ought to be granted to Mr Klatt.": Re Macpherson [2022] QSC 20, [30]-[37]. 

> ** "Susan Webster Boden of Cairns, wife of William Henry Boden formerly of Cairns, mercantile clerk, deceased, left real and personal estate in Queensland valued at about £30.000, which, by her last will and testament, dated 6th September, 1909, she devised and bequeathed to her sons and daughter, appointing her son Laurence John Boden of Cairns, licensed victualler, and a stranger, namely, Richard McManus, of Cairns, commission agent, to be her executors. Both executors renounced probate. Laurence John Boden and another son of the testatrix, Edgar Morrison Boden of Cairns, commission agent, who were both beneficiaries under the will now applied to the Court for a grant of letters of administration with the will annexed. The other beneficiaries had filed consents to such grant. G. Hart, for the applicants: Section 8 of the Probate Act of 1867 applies the English probate practice. Rule 50 of the English Rules and Orders, 1862 (non-contentious business) provides as follows: “No person who renounces probate of a will or letters of administration of the personal estate and effects of a deceased person in one character is to be allowed to take a representation to the same deceased in another character.” That rule, which was intended for the guidance of the registry, may however, be modified by the Court. Mortimer on Probate, 2nd ed., pp. 230-231, who cites Re Loftus 1864, 3Sw. & Tr.307; 164Eng. R.1293) and Re Toscani ([1912] P.1). It is the wish of all the beneficiaries that the grant should be made. EA DOUGLAS J.[1] Holding that sufficient reason had been shown for a departure from the rule, ordered that a grant of letters of administration with the will annexed issue to the applicants.": Re Boden [1933] QWN 34. 

> Named executor catholic nun renounced - grant to niece stranger to estate: In the Will of Thomas Ruane [1959] QWN 32.

> Will appointing executor — Renunciation by executor — Petition by universal legatee for administration with the will annexed: In Re Doolan [1913] St R Qd 54. 

• Executor or an executor: An executor of an executor who has proved a will cannot renounce the executorship under the original will: In Re Gardner, Deceased [1948] QWN 41.

> query whether this is still the position under the Succession Act 1981 (Qld) s 47(5). 

[F] Duties of Administration - Executor

• "42 The duties of administration which an Executrix is required to perform include ascertaining what are the assets of the deceased, getting in those assets, ascertaining what are the liabilities of the estate, discharging those liabilities, apportioning the burden of payment of liabilities among the beneficiaries, keeping accounts and proper records of all dealings with the assets and liabilities of the estate, delivering accounts to those entitled to them, and distributing the net assets of the estate to the people entitled to receive them.": Gonzales v Claridades [2003] NSWSC 508, [42] (Campbell J in Eq). 

[G] Testamentary Guardianship - Appointment of

• See [G] in Parenting. 

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