When taking instructions for obtaining the grant of probate, you may become aware of certain issues which will need to be addressed before a grant of probate can be obtained.

These issues can be broadly divided into three categories:

• issues relating to the executor;

• issues relating to the will; and

• issues relating to the death.

Problems will arise where all of the named executors are not able and willing to apply for a grant of probate.

This may occur for a variety of reasons and you will need to address the individual issues and satisfy the court as to the appropriate person/s to be appointed as executor before a grant will be made.

The executor or one of the executors has predeceased the will maker

If the named executor has predeceased the will maker and an alternate or joint executor is named, that executor will be the appropriate person to apply for probate. If no alternative or joint executor remains, the appropriate applicant must apply for a grant of letters of administration with the will annexed.

One or more of the executors may be unwilling to act as an executor.

One or more of the executors may have formally renounced their right to apply for a grant of probate. This action must be taken before that person begins to intermeddle in the administration of the estate.

On the other hand instead of renouncing, an executor may simply refuse to act or just do nothing. In that situation the other executors or beneficiaries can serve a citation on that executor requiring that he or she apply for probate or that the court appoint another person to act as executor.

Such an action will at least enable the administration of the estate to proceed.

Alternately an executor who does not want to act or who wants assistance from an independent trustee company can appoint a private or public trustee company to act either with him/her or in his/her place.

A named executor may lack capacity

If the named executor lacks capacity then that person will not be able to act as an executor and an application will need to be made for letters of administration where there is no other executor named in the will or by the enduring power of attorney of the person who lacks capacity.

The named executor may be a minor

A minor cannot be the executor of a will. Another person will be appointed to act as the administrator of the estate until the minor attains the age of 18 years, at which time the minor can apply for a grant of probate if there are still executorial functions to be performed. See also Grant of letters of administration durante minore aetate.

The executor takes out a grant of probate but later dies

Where an executor obtains a grant of probate but later dies, there are three main considerations:

• If the administration still needs to be completed and the chain of representation applies.

• If the administration still needs to be completed and the chain of representation has been broken.

• If the administration has been completed, whether a new trustee needs to be appointed.

The named executor is outside of the state or territory in which the grant of probate is sought

The court has power to grant probate to an executor resident outside of the jurisdiction — whether or not the court will do so depends on the circumstances of the particular estate.

An executor who is resident outside the jurisdiction in which the grant of probate is sought may be required to give sureties (guarantees) to the court or may appoint an attorney to act on his behalf to obtain a grant. See also Grant of letters of administration durante absentia.

See Issues relating to the executor.

The original will needs to be filed with the court. There may, however, be a number of factors which will lead the court to require further evidence as to the authenticity of the will. These matters will include:

Lost will

It may be that you are aware that the deceased has made a will, but the original will cannot be found because it has been lost.

There is a presumption that if the will was last known to have been in the hands of the will maker and can no longer be found, that the will maker has destroyed the will. This, however, is a rebuttable presumption.

In order to give effect to a lost will, you will need to be able to prove the terms of the will. This will generally mean that you have a copy of the will.

The evidence required to uphold the terms of such a will varies depending on whether the will was lost by the will maker or another party, such as a solicitor or banker.

Inoperative will

A valid will may be rendered inoperative by external circumstances. This can occur where the named executor/s and all of the beneficiaries have predeceased the will maker.

If the will is wholly inoperative (all executors and beneficiaries predecease the Will maker) then it is not appropriate to apply for a grant of probate. The appropriate application is for letters of administration.

If, however, the will is partly inoperative because some of the beneficiaries have predeceased the will maker and the will does not contain appropriate substitution provisions, but it is still effective to appoint an executor, then the application will still be for a grant of probate.

Informal testamentary documents

If a testamentary document has not been signed in accordance with the execution requirements for a valid will (ie signed by the will maker, or at his direction, in the presence of two witnesses and, in some jurisdictions having all three persons remain present for the whole of the signing of the will), then the document is said to be "informal".

The courts have the power to dispense with these formalities in certain circumstances. This means that even if the will has not been signed and witnessed in accordance with the execution requirements for a valid will, the document can still be held to be a valid testamentary document if the court is satisfied that the will maker intended this document to be his/her will or an amendment to or revocation of his/her will.

Certain notices must be served on all parties who will be affected if the informal document is upheld.

Issues as to proper execution of the will

There may also be anomalies in the execution of the will. This is more likely where a will maker has not signed his/her will in the presence of a lawyer. It may be that the will is undated or that the parties have used different pens (which raises the question as to whether all parties were present at the same time) or one of the witnesses is a beneficiary. A beneficiary in Victoria can now witness a will although it should be avoided wherever possible.

In these types of situations, evidence will need to be provided to the court as to whether or not the will has been properly signed.

Where the death certificate of the deceased testator reveals a contributory cause of death of dementia or Alzheimers disease diagnosed before the date of signing of the will, the court is likely to require supplementary affidavit evidence as to the testator’s capacity at the time of signing the will.

Obliterations, interlineations and tampering

These are amendments to the will which have not been initialled by the will maker and both witnesses. It will be necessary to satisfy the court as to whether these amendments were made before or after the will was signed.

See Issues relating to the will.

In order to obtain a grant of probate, it is necessary to prove the death of the will maker. This is not usually difficult even if the death occurs outside the jurisdiction in which the grant of probate is sought. The most common method of proving death is by providing the court with the original (or certified) death certificate issued by the Registry of Births, Deaths and Marriages. In cases where the cause of death is subject to a report by the Coroner, the death certificate which contains the cause of death may not issue for some considerable time.

However, in order for probate to be granted it is not always necessary to wait for the issue of this final death certificate. The preliminary death certificate which is issued by Registry of Births, Deaths and Marriages can in some situations be sufficient proof of death for probate purposes.

If, however, the death has occurred as a result of foul play eg murder, the court will usually require evidence that the executor and beneficiaries are not suspects in the police investigation.

If the death occurred in a foreign country and the death certificate is not in the English language, it will be necessary to obtain an appropriate translation.

Another issue which might arise with regard to the death of a person is where no body has been found and the death is based on a presumption of death. If the deceased was domiciled in a foreign country, additional evidence is required in the Affidavit of executor.

See Issues relating to the death.