Options for Enforcing an Application for Probate

Options for Enforcing an Application for Probate

Help – my mum's executor won't apply for probate!

When a person dies leaving behind a Will, the executor of that Will should apply to the Court for probate so that the deceased's wishes can be given effect to. What if the executor refuses to do so? The Administration Act and the Public Trust Act give us tools to overcome such a situation, each slightly different, depending on what you require in your situation.

Section 53 Administration Act

This section gives the Court a wide power to direct an executor to apply for probate or to do anything else in relation to the estate. If an executor refuses to act or is unsure of how to act, an affected person (or the executor if they are unsure as to how to act) can apply to the Court for an order directing the executor to apply for probate and give directions as to how to act or distribute the estate.

Section 19 Administration Act

If an executor neglects to act for three months past the death of the deceased, either the co-executor, or a person interested in the estate (e.g. a beneficiary) can apply to be appointed as executor instead. The Court will enquire why the executor refused to act and why the applicant should not be appointed executor instead. The Public Trust can also apply, but it would be better to do so under the Public Trust Act.

Section 80 Public Trust Act

This section also applies where the executor fails to act for three months past the date of the death of the deceased. Under this section, the Public Trust can apply to be appointed executor of the Will. This is much easier than section 19, as the Court must grant the appointment, unless:

  • The executor applies for probate or letters of administration with the will annexed; or
  • The Court is satisfied that the delay in making the application has been and still is unavoidable or accidental.

Contact our litigation and family teams if you have any issues with an executor applying for probate and we can discuss the benefits of each option to determine the best option for your circumstances.

Please direct any enquiries to:

City Office - Litigation

John Burley (Partner) on (09) 306 6741 (jburley@mcveaghfleming.co.nz)

City Office - Family

Peter Fuscic (Partner) on (09) 306 6746 (pfuscic@mcveaghfleming.co.nz)

George Ireland (Partner) on (09) 306 6736 (gireland@mcveaghfleming.co.nz)

Albany Office - Family

Alissa Bell (Partner) on (021) 485 871 (abell@mcveaghfleming.co.nz)

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Trust and Estate Litigation

© McVeagh Fleming 2021

This article is published for general information purposes only.  Legal content in this article is necessarily of a general nature and should not be relied upon as legal advice.  If you require specific legal advice in respect of any legal issue, you should always engage a lawyer to provide that advice.