What are an Executor's powers before a grant of Probate?

By Tim Lynch

In NSW the deceased's property vests in the NSW Trustee and Guardian until the Court grants Probate of their Will or Administration of their estate. There is uncertainty as to the lawful authority of an executor to deal with the deceased's property prior to obtaining a grant of Probate. Our preferred view is that espoused by White JA in Deigan v Fussell [2019] NSWCA 299 - that the executor's authority to deal with the deceased's property comes from the deceased's Will, which takes effect from the instance of death and the title vesting in the NSW Trustee, pending grant of Probate, is nominal only and does not affect the authority of the executor derived from the Will. This approach is reflected in the routine administration of small estates without a grant of Probate and the approach of most banks and other financial institutions to permit the withdrawal of smaller balances without first requiring a grant of Probate.  Beware of conflicting authority on this issue including from the Full Court of the Federal Court of Australia in Byers v Overton Investments Pty Ltd (2000) 106 FCR 268. An executor confronted with a pressing need to act in relation to the deceased's property (including a right or cause of action) before having obtained a grant of Probate might well consider seeking an urgent limited grant from the Court, if time will permit and if it will not, then in our view should proceed as if authorised to act by the Will, taking into account the content of the Will.

Disclaimer

The above does not constitute legal advice, but is information which may be of general interest. Beswick Lynch Lawyers will not be held liable or responsible for any claim, which is made as a result of any person relying upon the information contained in this publication.