In the recent published reasons of Registrar C Boyle in Re
Janette Eleanor Counsel; Ex Parte The Public Trustee 
WASC 47, the Registrar has reminded practitioners that the
obligation on an executor who decides to apply for Probate is to
prove the Will, not to undermine it by introducing contrary
The executor's duty is to propound the instrument which the
testator has appointed him to propound. An executor cannot owe any
duty to take legal proceedings to destroy the instrument from which
he is appointed.
The Registrar noted that "in the first instance, it must be
the obligation of the executor to form a judgment about whether to
prove a will and in what form. It is the executor who must weigh up
any objections that the deceased lacked capacity, or was unduly
influenced, or that the will was a forgery. Having made that
judgment, the executor must back it by making an application and
adducing the evidence in support."
The principle applies equally to both non-contentious
applications and contentious proceedings. If the evidence is not
clear, but an executor decides to prove the Will by grant in solemn
form, then any party with a relevant interest has standing to
oppose a grant. It is for any person who chooses to oppose to test
the evidence and raise issues why the Will should not be
The Registrar went on to say "It is not appropriate for an
executor to make an application that equivocates or dithers, in
effect saying to the court, 'It is one thing or the other: you
Kott Gunning Recommendation
The clear message is that if you have a Will which attracts the
presumptions of testamentary capacity, knowledge and approval, and
due execution, then the application for Probate should just deal
with the necessary procedural requirements and information. If
someone wants to challenge your appointment leave it to them to
raise the issues with the Court.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
Kott Gunning is a proud member of
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Sect.117 can deal with false statements and knowingly making false allegations of violence could justify a costs order.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).