Jing Zhi Wong - Probate

Wong on Wills & Probate

Select topics on Probate & Administration in Australia, specifically Queensland

Work-in-progress, 28 June 2025 (last updated)

[A] 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>.

[B] Probate - Grants of Representation

Resources:

> Queensland Law Reform Commission, Administration of Estates of Deceased Persons: Report of the National Committee for Uniform Succession Laws to the Standing Committee of Attorneys General (Report No. 65, 2009) <https://www.austlii.edu.au/cgi-bin/viewdoc/au/other/lawreform/QLRC/2009/65.html> Vols 1-4.

> Geoff Lindsay, 'The Province and Nature of Probate Law and Practice' (Paper, College of Law Wills and Estate Seminar, 23 September 2022) <https://supremecourt.nsw.gov.au/documents/Publications/Speeches/2022-Speeches/Lindsay_20220223.pdf>.

'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> -- Victoria.

> see also, '[24,000] What is a special or limited grant' in Wills Probate & Administration Victoria (LexisNexis): "Apart from grants of probate and letters of administration (with or without the will annexed) which form the majority of the applications made to the registrar, there are a number of special or limited grants which may be obtained. The main distinction between the usual grants and the special or limited grants is that the usual grants relate to the entire estate and confer general all-encompassing rights of administration onto the executor or administrator. The special or limited grants, on the other hand, are for a particular purpose or time only. The special or limited grants which are available include: Most commonly used: (1)Grant of letters of administration ad colligendum bona [Latin: ad colligenda bona — “to collect the goods”] (for collecting and preserving the goods of the deceased, pending delay in making the usual grant). (2)Letters of administration pendente lite [Latin: “awaiting the litigation”] (for collecting and preserving the goods of the deceased, pending litigation of a claim for the usual grant). (3)Letters of administration ad litem [Latin: “for the suit”] (for the purposes of enabling a person to represent an estate in litigation). Less commonly used: (4)Grant of letters of administration de bonis non [Latin: “of the goods not administered”] (for the appointment of an administrator in circumstances where the executor or administrator to whom a grant was made dies or disappears before the estate is fully administered). (5)Letters of administration durante absentia [Latin: “during absence”] (for the appointment of an administrator in circumstances where the executor or administrator to whom a grant was made is absent from Victoria for more than 12 months). (6)Grant durante minore aetate [Latin: “during minority”] (for the appointment of an administrator in circumstances where the person entitled to the grant is not yet 18 years of age). (7)Other special or limited grants."

> cf however, in NSW: "[13] When this limited grant was first brought to my attention, I had two disturbing thoughts. [14] The first was that whilst the Wills, Probate and Administration Act 1898 seems to make some provision for the powers of an administrator under a limited grant durante minore aetate (“dma”), there does not appear to be any corresponding provision with respect to other limited grants. Furthermore, s 70 in practice leads to an administration bond with conditions (see Mason and Handler, Succession Law and Practice NSW [1361.2]), whereas it would not appear that the present limited grant explicitly involves any conditions. ...": Koerstz v Norman [2008] NSWSC 133.

Double Probate

> Christine Smyth, 'Herding Cats: Dealing with Recalcitrant Executors and Double Probate' (2019) Aug Proctor 40 <https://christinesmythestatelawyers.com.au/wp-content/uploads/2020/11/Herding-Cats.pdf>, archived at <https://web.archive.org/web/20250315063817/https://christinesmythestatelawyers.com.au/wp-content/uploads/2020/11/Herding-Cats.pdf>.

Minors seeking Probate:

> [395-2585] Executor a minor: "Where the sole1 executor of an estate is a minor, the court may grant administration with the will annexed2 to the guardian of the minor or such other person as the court thinks fit,3 with limited or full power to act until probate is granted to the executor (upon reaching 18 years of age)4 or to some other person.5 Notes 1 Where there are several executors, only one of whom is a minor, a grant of administration durante minore aetate might not be granted: see, for example, Foxwist v Tremain (1670) 1 Mod Rep 47; 86 ER 721. Compare In the Will of Nicol (dec’d) (1926) 43 WN (NSW) 146a Citation information only (minor a co-executor, but the other executor, although of full age, was unable to act as executor; the court granted letters of administration to the minor’s guardian). See also (SA) r 45 (probate granted to the other executor or executors, with leave for a minor to apply upon reaching 18 years of age or for a guardian to be appointed (under ibid r 42) if the other executors renounce or refuse to accept probate). 2 Generally referred to as a grant cum testamento annexo durante minore aetate (‘during minority with the will annexed’). Where the deceased dies intestate and the person entitled is a minor, the grant is referred to simply as a grant durante minore aetate (‘during minority’). For the definition of ‘durante minore aetate’ see Encyclopaedic Australian Legal Dictionary. As to grants of administration when the person entitled on an intestacy is a minor see [395-3210]-[395-3225]. 3 The court has discretion whether, and to whom, to make the grant. The question is whether the grant will benefit the minor during his or her minority: In the Estate of Munroe(1891) 13 ALT 110; Re Lange(1896) 2 ALR 61 Citation information only; R v Bettesworth (Smith’s Case)(1731) 2 Stra 892; 93 ER 921. Generally, the court prefers statutory and testamentary guardians: see Re Morris(1862) 2 Sw & Tr 360; 164 ER 1035; In the Estate of Robertson(1882) 4 ALT 94. However, the court may approve a guardian elected by the minor: see Re Dillon’s Infants(1891) 7 WN (NSW) 131 Citation information only per Manning J; In the Estate of McCaig(1885) 11 VLR 758 Citation information only per Molesworth J; Re Coyle(1888) 14 VLR 793 Citation information only per a’Beckett J; Re Morris (dec’d)(1862) 2 Sw & Tr 360; 164 ER 1035; In the Estate of Soon(1882) 8 VLR (IP & M) 47; In the Estate of Robertson(1882) 4 ALT 94. A duly elected guardian may be passed over by the court if there is sufficient reason to do so: see, for example, In the Goods of Ewing(1828) 1 Hag Adm 381; 162 ER 619 (elderly guardian administration case); West v Willby(1820) 3 Phillim 379; 161 ER 1357 (insolvent estate). In New South Wales and Western Australia, minors have a limited right to elect their guardian subject to the court’s approval: (NSW) Supreme Court Rules 1970 Pt 78 Div 8 r 52 (WA) Non-contentious Probate Rules 1967 r 26. For legislation in all jurisdictions which sets out who may apply for a grant durante minore see [395-3225]. 4 The general rule is that a grant of administration durante minore aetate ceases when the minor becomes of age: Jones v Basset(1701) Prec Ch 174; 24 ER 85; Taylor v Watts(1676) Freem KB 425; 89 ER 316 (grant terminates when one of several minor executors attains majority). In the Will of Nicol (dec’d)(1926) 43 WN (NSW) 146a Citation information only (other executor not capable at time of testator’s death); Re Johnson[1931] VLR 60 Neutral treatment indicated; (1930) 36 ALR 401. 5 In the Goods of Loftus (1864) 3 Sw & Tr 307; 164 ER 1293 (grant made to testamentary guardians). See also: (ACT) Administration and Probate Act 1929 s 21 (NT) Administration and Probate Act 1969 s 30 (NSW) Probate and Administration Act 1898 s 70 (QLD) Succession Act 1981 s 6(3); (QLD) Uniform Civil Procedure Rules 1999 r 639 (SA) rr 44, 45 (TAS) Administration and Probate Act 1935 s 23 (VIC) Administration and Probate Act 1958 s 26 (WA) Administration Act 1903 s 33; (WA) Non-contentious Probate Rules 1967 r 26(1). In the Northern Territory and New South Wales, legislation expressly provides that administrators appointed during minority have the same powers whether or not the deceased left a valid will: (NT) Administration and Probate Act 1969 s 30(2) (NSW) Probate and Administration Act 1898 s 71 (same powers as an administrator during the minority of next of kin).": '(G) Types of Grant of Probate' in Halsbury's Laws of Australia.

> "If so, because minors cannot be granted probate or letters of administration in their own right, a grant of administration with the will attached (cum testamento annexo – or administration cta), or administration on intestacy, will be given, with regard to the specific legislative requirements of each jurisdiction, for the minor’s benefit to:1 (1) both parents of the minor, or one with the consent of the other; (2) the minor’s legal, statutory or testamentary guardian, or a guardian of the minor assigned by the court;2 (3) generally, if the minor is above a certain age specified in the legislation – any guardian or next-of-kin elected by the minor, including, if the minor is married, the minor’s spouse;3 or (4) a person considered appropriate by the court.4 This type of grant is known as a grant of letters of administration “durante minore aetate” (during minority). This grant lasts until the legal minor assumes majority. It confers all powers normally possessed by a grant of administration and normally reserves power to minors to seek grants in their own name upon reaching majority.5 Footnotes 1 Administration and Probate Act 1929 ACT, s 12(2) (applies only in the case of an intestacy); Court Procedures Rules 2006 ACT, r 3116; Probate and Administration Act 1898 NSW, ss 63, 70; Supreme Court Rules 1970 NSW, Pt 78 r 50; Administration and Probate Act 1969 NT, s 22(3); Supreme Court Rules 1987 NT, r 88.28; Succession Act 1981 Qld, s 6(3); Uniform Civil Procedure Rules 1999 Qld, r 639; Supreme Court of South Australia Probate Rules 2015 SA, rr 44, 45; Administration and Probate Act 1935 Tas, s 23(1); Probate Rules 2017 Tas, rr 58–59; Administration and Probate Act 1958 Vic, s 26(1); Supreme Court (Administration and Probate) Rules 2014 Vic, r 5.01; Administration Act 1903 WA, s 33; Non-Contentious Probate Rules 1967 WA, r 26. 2 Administration and Probate Act 1929 ACT, s 21(1)(a); Probate and Administration Act 1898 NSW, s 70(a); Supreme Court Rules 1970 NSW, Pt 78 rr 50(1)(a), (b), 51; Administration and Probate Act 1969 NT, s 30(1)(a); Supreme Court Rules 1987 NT, rr 88.28(1)(a), (c), 88.30; Uniform Civil Procedure Rules 1999 Qld, r 639(2); Supreme Court of South Australia Probate Rules 2015 SA r 44; Administration and Probate Act 1935 Tas, s 23(1); Probate Rules 2017 Tas, rr 58–59; Administration and Probate Act 1958 Vic, s 26(1); Supreme Court (Administration and Probate) Rules 2014 Vic, r 5.01(1) – (3); Administration Act 1903 WA, s 33(1). See Re Estate of Hancock [2000] NSWSC 875. 3 Supreme Court Rules 1970 NSW, Pt 78 rr 50(1)(c), 52(1) (where the minor is aged 16 years or above); Supreme Court Rules 1987 NT, rr 88.28(1)(b), 88.29(1) (where the minor is aged 16 years or above); Supreme Court of South Australia Probate Rules 2015 SA r 44(1)(b) (where the minor is aged 16 years or above); Supreme Court Rules 2000 Tas, r 740 (no age threshold specified for the minor to elect a guardian); Administration and Probate Act 1935 Tas, s 23(1); Probate Rules 2017 Tas, rr 58–59; Supreme Court (Administration and Probate) Rules 2014 Vic, r 5.01(2) (where the minor is aged 12 years or above). 4 Administration and Probate Act 1929 ACT, s 21(1)(b); Probate and Administration Act 1898 NSW, s 70(b); Administration and Probate Act 1969 NT, s 30(1)(b); Uniform Civil Procedure Rules 1999 Qld, r 639(2); Supreme Court of South Australia Probate Rules 2015 SA, r 44(3); Administration and Probate Act 1935 Tas, s 23(1); Probate Rules 2017 Tas, r 58(2)(iii); Administration and Probate Act 1958 Vic, s 26(1); Supreme Court (Administration and Probate) Rules 2014 Vic, r 5.01; Administration Act 1903 WA, s 33(1). 5 See, eg, Administration and Probate Act 1929 ACT, s 21(2); Probate and Administration Act 1898 NSW, ss 70 – 71; Administration and Probate Act 1969 NT, s 30(1); Uniform Civil Procedure Rules 1999 Qld, r 639(3); Supreme Court of South Australia Probate Rules 2015 SA, r 45(1)(where minor co-executor); Administration and Probate Act 1935 Tas, s 23(1); Probate Rules 2017 Tas, r 58(4)(d); Administration and Probate Act 1958 Vic, s 26(1); Administration Act 1903 WA, s 33(1) – (2). See Re Cope; Cope v Cope (1880) 16 Ch D 49, Jessel MR at 52.": '[36.3.530] The testator may appoint a minor to be sole executor, or a minor may be entitled to a grant of administration on intestacy' in Joseph Claude Venenziano, Thw Laws of Australia (Westlaw) c 36.

> '[24,030] Grant durante minore aetate' in Wills Probate & Administration Victoria (LexisNexis): "Section 26 of the APA 1958 deals with the situation where the only executor appointed by the will is a minor: s 26. The court may grant administration to the minor's guardian or other fit person as decided by the court until the minor's 18th birthday. This type of grant is also available where the only major beneficiary under an intestacy is a minor. In both situations, letters of administration during minority may be granted to any person whom the court thinks fit, including the minor's guardian. The court, therefore, has absolute discretion as to whom to appoint, although it will usually appoint the minor's guardian. The court will prefer the minor's natural testamentary or statutory guardian to a guardian nominated by the minor: In the Estate of Soon (1882) 8 VLR (IP & M) 47. Reference may also be made to Re Stevenson (1866) LR 1 P&D 287; In Re Dillon's Infants (1891) 7 WN(NSW) 131; Re Estate D J Hancock BC200005158; [2000] NSWSC 875. Rule 5.01 of the A&P Rules 2014 specifically deals with the election and appointment of guardians, including the election of the guardian by minors aged 12 or over: see [254]. Where the executor is a minor, the grant will be made to the applicant for his or her use and benefit until the minor attains full age: see s 26(1). If the minor is the preferred applicant on an intestacy, but for his age, the grant will be made to the applicant until the minor attains full age and applies for a grant of letters of administration: Re Johnson [1931] VLR 60."

> appointment durante minore aetate to guardian: "[53] Accordingly, letters of administration cum testamento annexo minore aetate should be granted of the will ... [56] If a person appoints a minor as his or her executor, the court makes a grant durante minore aetate and then makes a final grant when the minor comes of age. [57] The reason why Darren seeks the grant is that Corey’s mother, Becky, has made a Family Provision claim against the estate. This seems a good enough reason not to appoint Becky as the administrator. In my view, Darren is the next best person to act for Corey until he obtains his majority. [58] Thus an order should be made appointing Darren as an assigned guardian to take the grant under r 78.29 of the Supreme Court Rules."": Ackerley v Felton [2012] NSWSC 1468 (Young AJ).

> "[7] Pt78 r29 and following are in the division of the Probate rules dealing with grants of administration during minority. It is possible for a person to make his or her executor a person who is under 18 years of age. If that occurs, then the Court in the first instance makes a grant durante minore aetate (dma) until the nominated executor attains his or her majority. [8] The practice for centuries in such cases has been to distinguish between the case where the named executor is an infant (under seven years) or a minor (between 7 and 18). In the latter case, the minor may elect a guardian who, if he or she consents, may be given a grant dma. Ordinarily, the grant is to be made to the next of kin of the minor, but if that next of kin is a minor or there are good reasons for passing over the next of kin, then some other person may be appointed. It is all a matter for the discretion of the Court subject to those general guidelines; see for instance Re Ewing (1828) 1 Hag Ec 381; 162 ER 619; Re Weir (1862) 2 Sw & Tr 451; 164 ER 1070 and Re Stephenson (1866) LR 1 P & D 287. The subject matter is covered in Tristram and Cootes Probate Practice (Butterworths, London, 1946) p252 and following. [9] The English authorities have been accepted in Australia; see for instance Re Dillon's Infants (1891) 7 WN (NSW) 131. [10] Pt78 r29 to r31 deal with the situation of a grant dma: they do not have any wider operation.": Re Estate of Hancock [2000] NSWSC 875.

> grant to testamentary guardian, upon the guardian's application: "Lorne Ethel Nash Kibble, of Ascot, Brisbane, died at Brisbane on 3rd February, 1935, having first duly made and executed her will by which she left her whole estate to be divided equally between her two children, John Dudley Nash Kibble and Kenneth George Nash Kibble. The deceased had no other children, left only personal estate, and appointed no executor by her will. John Dudley Nash Kibble was nineteen years of age, and Kenneth George Nash Kibble was seventeen years of age. They were the only next of kin surviving. Their father had died on 4th December, 1923, and probate of his will had been granted to the deceased and one Henry John Cupples, the executrix and executor named therein. This will also appointed the deceased and Cupples guardians of the two infant children. Henry John Cupples now applied as testamentary guardian for a grant of administration of the goods of the deceased, with the will. ... [1] Ordered that a grant of administration issue to Henry John Cupples, as testamentary guardian, of the goods of the deceased with the will, for the use and benefit of the two children during their minority and until they or either of them shall apply for and obtain a grant to be made to themselves or himself personally.": Re Kibble [1935] QWN 45 (Blair CJ).

> UCPR 1999 (Qld) r 639.

> Re Ronan [2018] QSC 173.

> "[33] An initial potential difficulty with the submission made on behalf of Ms Frith arises out of r 610(5). The deceased’s children lack capacity, by reason of their age. That would mean that they are not entitled to priority, notwithstanding r 610(1). However, for Ms Frith, it was submitted that she was the guardian of the children for the purposes of r 639(2); and accordingly she represented them, with the effect that r 610(2) accorded to her the same priority which the children would otherwise have had. ... [76] However, it seems to me that I should treat Ms Frith as a person representing the children of the deceased, for the purposes of r 610. It may be that she is the guardian of those children, as the term is used in r 639(2). In any event, she is their litigation guardian under r 95. On that basis, she would enjoy priority under r 610.": Frith v Schubert and Anor [2010] QSC 444.

> ** "[13] The plaintiffs have not sought a grant of representation in favour of them for the minor’s benefit. Such a grant will normally be limited until the minor attains full age and obtains a grant2 and is referred to as a grant of administration during minority or “administration durante minore aetate”.3 [14] The Court’s authority in such matters can be summarised as follows: Grants of administration durante minore aetate may be made to guardians of infants for their use and benefit, subject to such limitations or conditions as the court or a judge or the Registrar of Probates may order. Infants above the age of seven years may elect a guardian, but in other cases a guardian must be assigned by the Court or a judge or the Registrar of Probates founded on an affidavit showing that the proposed guardian is either de facto next of kin or the infants, or that their next of kin de facto has renounced his right to the guardianship, and is consenting to the assignment of the proposed guardian, and that such proposed guardian is already to undertake the guardianship; and upon any application for administration by such guardian evidence of his election or assignment must be produced. In a family where there are infants both above and under the age of seven years an elected guardian may act for all the infants with out special assignment.”4 [15] The plaintiffs have not sought an application before this court for such assignment and the court has not had the benefit of hearing from the child. In Victoria, minors aged 12 years or over may elect a guardian; in other instances the guardian may be assigned by the court or Registrar.5 The plaintiffs may be, in effect, attempting to act under the common law as guardian of Elinor.6 At common law, a parent may receive property for the benefit of the child.7 However, it seems under California law more is needed by the plaintiffs. ... 2. Re Johnson [1931] VLR 60. 3. See Halsbury’s Laws of Australia, 395 (IV) Administration During Minority, [395–3210]. 4. Ross A. Sundberg, Griffith’s Probate Law and Practice in Victoria, (3rd ed, 1983), 199. 5. Supreme Court (Administration and Probate) Rules 2004, r 5.01. 6. See for example Fountain v Alexander (1982) 150 CLR 615 at 626 and 634. 7. Morgan v Morgan (1737) 1 Atk.489, 26 ER 310.": Re Gerrit Johannes van Driel-Vis & Patricia Ann Van Driel-Vis [2007] VSC 372.

> Re Leopold; Application by Gasbarro and Roache [2022] VSC 579.

> "A testator by his will directed his trustee to convert and, after payment of his debts and funeral and testamentary expenses, stand possessed of the residue of the estate upon trust to pay his widow an annuity until her death or remarriage and after her death or remarriage upon trust for all his children living at his death who should then have attained or thereafter attain the age of twenty-one years. Upon application made under s. 45 of The Trustees and Executors Acts, 1897 to 1924, some six years after his death, three of the four children having attained the age of twenty-one years, the court directed the trustee to set aside two several funds for securing the payment of the annuity to the widow and to divide the remainder of the estate into four equal shares, to distribute one such portion to each of the three eldest children and to hold the fourth such portion in trust for the fourth child durante minore aetate.": In re Otto Maletz [1948] QWN 30.

"The only next of kin of an intestate were infants, and there were no other relatives in Victoria. Held: The court granted administration de bonis non to one of their testamentary guardians durante minore aetate.": In the Estate of Stanton (Supreme Court of Victoria, 2 December 1880, Molesworth J).
"Held: Where although an infant named in a will as executor is not a sole executor, but the other person therein named is precluded from taking out administration by reason of mental infirmity, the court has power, notwithstanding the provisions of the Wills, Probate and Administration Act 1898 (NSW), s 70, to grant letters of administration with the will annexed to the guardian of the infant durante minore aetate.": In the Will of Nicol (Supreme Court of New South Wales, 9 August 1926, Harvey CJ in Eq).
Land Titles & Probate: 'Transmission Applications' in Land Title Practice Manual pt 5, 5a, 6 (Titles Qld) <https://www.titlesqld.com.au/wp-content/uploads/2023/09/ltpm-part-055a6.pdf>.

Jing Zhi Wong

[C] 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).

[D] 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).

Administration durante minore aetate (executor a minor)

"[PAA.71.10] Administration durante minore aetate An administrator during minority (dm ae) is an ordinary administrator appointed for the purposes of getting in and administering the estate in the usual way. The person's administration is limited only by the fact of the minority of the executor.1 The administrator dm ae can exercise the statutory powers of sale, lease or mortgage under s 153 of the Conveyancing Act 1919, and may also exercise a power of sale given by the testator to their executors or administrators.2 The administrator dm ae is liable for their administration, and, after its determination, must account to a subsequent administrator3 or to the executor4 as the case may be. If the testator was themself an executor, that executorship will also vest in the administrator dm ae, in other words, the chain of executors is not broken merely by the fact that one of the executors in the chain is a minor.5 Footnotes 1 Re Cope; Cope v Cope (1880) 16 Ch D 49; Re Thompson & McWilliam's Contract [1896] 1 Ir R 356. 2 Monsell v Armstrong (1872) LR 14 Eq 423. 3 Fotherby v Pate (1747) 3 Atk 603; 26 ER 1148; Taylor v Newton (1752) 1 Lee 15; 161 ER 7. 4 Lawson v Crofts (1662) 1 Sid 57; 82 ER 967. 5 Anon (1675) 1 Freem KB 288; 89 ER 208; see [PAA.45.20]–[PAA.45.140].": '71 Who shall have the same power as where administration is granted durante minore aetate of the next of kin', in Stephen Janes, David Liebhold & Paul Studdert, Wills, Probate and Administration Law in New South Wales (Westlaw).

[E] Resealing of an Australian grant or probate in New Zealand

Administration Act 1969 (NZ), ss 70, 71.
Miah v AMP Life Limited [2018] NZHC 1634 <https://www.nzlii.org/cgi-bin/sinodisp/nz/cases/NZHC/2018/1634.html>.

[F] Burial Rights - Disposal of the Body

See, Brown v Weidig [2023] NSWSC 281, [38] et seq.

[&] Singapore

Probate & Administration Toolkit (Family Justice Courts Singapore, ver 2, 2021) <https://www.judiciary.gov.sg/docs/default-source/family-docs/probate-toolkit---ver-2--nov-2021-(002).pdf?sfvrsn=53e80230_2>, archived at <https://web.archive.org/web/20221118164720/https://www.judiciary.gov.sg/docs/default-source/family-docs/probate-toolkit---ver-2--nov-2021-(002).pdf?sfvrsn=53e80230_2>.
'Grant of Probate Guide' (PKWA) <https://pkwalaw.com/grant-of-probate/>, archived at <https://archive.is/hPqFj>.
Double probate: court to reserve the power to make a like grant to those others who are competent to act and who have not renounced:

> UJT v UJR [2018] SGHC 44; [2018] SGHCF 6 <https://www.elitigation.sg/gd/s/2018_SGHCF_6>.

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