Passing over

We have examined the opportunity for an application to the court where an executor neglects to prove a Will or fails to renounce probate. But what happens if an executor (first executor) is not fit to hold office, then, a beneficiary /co-executor could lodge a caveat preventing a grant to the first executor.

An example of this is where the first executor moves into the deceased’s property, causes damage to it and/or does not pay rent to the estate. The court has power to pass over the first executor in favour of a co-executor or a beneficiary. The court may consider this form of application where the first executor does not have capacity, lives overseas, in prison, is insolvent/bankrupt, has interfered with the estate but is not prepared to make application for a grant.

Lastly, concerning passing over, one must be cautious to commence such an application as the court may be reluctant to use its discretion to make such order, and as well, an unsuccessful applicant may have costs awarded against him/her.

 “Pearce Webster Dugdales are experienced in this area and are qualified to provide advice to you.”