Will and Executors

Who can make a will?
Anyone over the age of 18, and anyone under 18 who is married or contemplating marriage, can make a will, provided they have testamentary capacity. Persons under the age of18 who are unmarried can make a will with the approval of the Court; this can be advisable for young people who are earning large sums of money in modelling, in show business or arising out of their sports activities or from commercial endorsements.

The Court can also authorise a will to be made for a person lacking testamentary capacity under Part 2.2 of the Succession Act.

I have been asked to prepare a will by a person whose affairs, to my knowledge, are being managed under an enduring power of attorney. Should I contact the attorney to verify the capacity of the intending testator?
Many people who have testamentary capacity have granted an enduring power of attorney and that fact, of itself, should not cast doubt on the testamentary capacity of the intending testator. Depending upon the circumstances of the intending testator, such as whether he or she is in a nursing home, hospital etc, it would be wise to first check with the testator’s treating medical practitioner or hospital superintendent to ascertain whether the client is suffering from any form of dementia or has differing periods of lucidity. You should consult the Law Society guidelines here.

Can wills be registered in NSW?
There is no public registry of wills in NSW, but a number of private providers offering will registration facilities are in operation. NSW Trustee & Guardian offers a secure storage service for wills, power of attorney and enduring guardianship documents called Will Safe. To find out whether NSW Trustee & Guardian holds the will of a deceased person, a member of the public can make a Deceased Will Enquiry.
The Registrar in Probate in the Supreme Court of NSW has a facility for lodgement of a will in the testator’s lifetime, although this is rarely used. In view of the ease of making a new will or codicil, will registration offers no certainty of proof of that document being the latest will.
From 2002 until 28 March 2014 the NSW Registry of Birth Deaths and Marriages (BDM) operated a Wills Register, however this service is no longer in operation.


What happens if the will doesn’t appoint an Executor?
One of the beneficiaries, usually a major beneficiary, can apply for Letters of Administration with the Will Annexed. When that application is granted the applicant is the Administrator of the Estate, with all the duties, obligations, rights and powers of an executor to carry out the wishes of the deceased as set out in his/her Will.

What happens if there is more than one executor and they all die before the Estate is fully administered, are their executors the executors of the first estate, or is a further grant required from the Court?
No, it is the executor of the last surviving executor who is automatically the executor in the first estate “by right of representation” as soon as he or she obtains a grant of Probate of the will of that last surviving executor. If the last surviving executor dies without a will, a further grant will be required to complete the administration of the first estate. The application to the Court will be for Letters of Administration cta. dbn. (cum testamento annexo, de bonis non administratis) (with the will annexed, in respect of the unadministered assets).

What if the executor appointed in the will is under 18?
A limited grant of Administration can be granted to his/her guardian, to expire on the executor turning 18. At that time a grant can be obtained by the executor to complete the administration of the estate.

What is the position if there are two executors and they don’t agree to work together to obtain a Grant of Probate?
The duty of the executors, if they decide to accept their appointment, is to obtain probate and discharge their duty of care towards the beneficiaries. If the disagreement between executors is causing delay in the application for Probate, one of them, preferably with a solicitor’s advice, should give notice to the other that he/she intends to apply for Probate and call on the other executor to join in the application. If that executor fails to respond within the specified time, the first executor may proceed to apply for Probate on his/her own, with leave being reserved to the other executor to come in and prove the Will.

What if the disagreement relates to issues such as entitlement or the identity of, or the disposal of, the estate property?
Either or both of the executors can apply to the Court under Section 63 of the Trustee Act for an opinion, advice or direction on any question regarding the management or administration of the estate property or regarding the interpretation of the Will. Provided no fraud, misrepresentation or wilful concealment is involved, an executor who acts in accordance with the opinion, advice or direction of the court is deemed to have discharged his/her responsibility as executor.

Is an executor automatically entitled to the payment of commission for his or her efforts?
On rare occasions in the will a specific legacy is left for the executor to cover his or her executorial work. In that event no further order is needed for payment of the commission specified. Similarly if there is a legacy or other bequest to the executor contained in the will, there is a prima facie presumption that the legacy or bequest is intended to cover any entitlement to commission. Otherwise payment of commission may be authorised by the Court on application by the executor on the filing and passing of accounts in the estate. The payment of a commission may also be agreed by all the beneficiaries provided they are of age and not subject to any legal disability.

How is an executor or trustee protected against further claims before the estate or trust can be safely distributed?
A Notice of Intention to Distribute the Estate (or Trust) should be advertised, in the prescribed form, giving at least thirty (30) days for claimants to notify the legal personal representative of their claims. Distribution should not take place until at least six months after the date of death or, if the legal personal representative has received notice of an intention to make a family provision claim which has not been commenced, at least 12 months after the date of death.

Wills & Executors FAQ                                

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