By Pinar Acay
Under Australian law, the executor of a deceased person’s estate has a duty to act promptly to administer the estate in accordance with the law and the deceased’s wishes. Delaying an application for a grant of probate can have significant consequences for executors, beneficiaries and creditors of an estate. Executors facing difficulties should seek legal advice promptly to ensure they fulfill their responsibilities effectively and minimise risks to themselves and the estate.
Executor’s Duty and Potential Consequences of Delay
An executor has a fiduciary duty to administer the estate efficiently and in the best interests of the beneficiaries. Delays can lead to:
- Breach of Duty: An executor who unjustifiably delays the probate process may be found to have breached their fiduciary duty. This can result in personal liability for any losses incurred by the beneficiaries or creditors.
- Impact on Beneficiaries: Delayed distribution of the estate may cause financial hardship to beneficiaries, particularly if they rely on their inheritance for living expenses.
- Legal Challenges: Beneficiaries or other interested parties may bring legal action against the executor. Courts can order the executor to expedite the process, appoint a new executor or administrator and even award damages for losses caused by the delay.
- Risk of Estate Assets Devaluing: Prolonged delays can result in depreciation of estate assets, such as property or investments, adversely affecting the overall value of the estate.
- Claims by Creditors: Creditors of the estate may initiate proceedings to recover debts if the probate process is unnecessarily delayed, further complicating administration.
- Legal Costs: Disputes arising from delays can lead to costly litigation, reducing the estate’s value.
Applicable Time Limits
While there is no statutory deadline for applying for a grant of probate in most jurisdictions, delays must be reasonable. Under the Administration and Probate Act 1958 (Vic) (“the Act”), executors are expected to act with due diligence. If an application takes longer than three years, the Supreme Court of Victoria requires the executor to file an affidavit of delay.
Court Intervention
Courts have mechanisms to address delays. The Supreme Court of Victoria has both inherent power and power under the Act to pass over an executor. Under section 15 of the Act, the Court has “the power to summon any person named as executor in any will to prove or renounce probate of the will”. Beneficiaries or creditors can also seek orders compelling the executor to apply for probate or appoint a new administrator if the executor “does not appear or show sufficient cause”.
Recent case law underscores the importance of timely applications:
- O’Halloran v Coffey (No 2) [2023] VSC 51: The Court made an order for passing over the executors and appointment of an independent administrator. This case involved a considerable delay of eight years in the filing of an application for a grant of probate due to ongoing disputes between family members and, in particular, the two executors as to the content of the inventory of assets and liabilities.
- Re Luna [2023] VSC 223: The Court made an order for passing over the executor and appointment of independent administrator. In this case, the executor had not filed an application for a grant of probate in relation to his late mother’s will for almost four years.
- Jedrzejewska v Sheedy [2023] VSC 511: The Court made an order for passing over the executor, who filed an application for a grant of probate more than three years after the death of his late brother.
Recommendations for Executors
To avoid the consequences of delays:
- Act Promptly: Executors should apply for probate as soon as practicable after the deceased’s death, ideally within the first six months.
- Maintain Clear Communication: Keeping beneficiaries informed of progress can help manage expectations and reduce disputes.
- Document Justifications for Delays: If delays are unavoidable (e.g. awaiting documentation), keeping detailed records can protect the executor from liability.
- Engage Legal Support: Seeking advice from probate lawyers can streamline the process and ensure compliance with legal obligations.
This information is general in nature and not a substitute for legal advice. Speak to one of our senior probate lawyers, namely Pinar Acay on (03) 8621 1000 or (03) 9331 1144 at our Melbourne and/or Essendon offices for tailored advice about your situation.
