Can a grant of probate be revoked?

When a Grant of Probate is obtained the court expects the person appointed as Executor to administer the estate properly. This means that there are certain responsibilities and duties one must fulfil if one is appointed Executor.

These duties include:

  • Collecting the assets of the deceased.
  • Organising funeral arrangements.
  • Paying the debts owed by the deceased.
  • Distributing the estate in accordance with the will.

The Executor is also required to obtain Probate and has a duty of care towards the beneficiaries.

If Executors do not carry out the duties properly, they can be removed by a court order. The court can revoke the Grant of Probate on sufficient grounds being established.

Recently the Supreme Court of NSW ordered an Executor to be removed due to a conflict of interest. The Executor tried to transfer shares owned by the deceased to himself instead of the named beneficiaries under the will.

The Executor knew that the deceased held the shares and the shares were to be given to the beneficiaries. However, the Executor did not record the shares in the assets and liabilities of the estate.

The beneficiaries brought a court case, seeking to have the Executor removed. At law the Executor has important duties to fulfil and failure to perform these duties, can lead to the removal of the Executor and revoking the Grant of Probate.

In this case the Executor did not locate and disclose all the assets of the estate in a timely manner. He made unauthorised transactions to pay himself substantial amounts of commission from the estate’s funds. He did not administer the estate in a timely and proper manner.

It is generally accepted that the reasonable time for an Executor to complete their obligations to the estate is, one year from the date the Grant of Probate was obtained. In this case, the Grant of Probate was obtained on the 29 March 2011, and the administration of the estate remained incomplete at the date of the hearing, five years from date of the Grant of Probate.

The Executor had also failed to keep adequate accounts of the estate and could not give an explanation as to why the accounts had been poorly managed. The Court found he did not recognise the significance of his role as an Executor.

The court was satisfied that these breaches of his duties were serious and justified the Grant of Probate being revoked and removing him the Executor.

It is essential for an Executor to properly carry out their duties entrusted to them by the Probate Court and to act honestly and fairly. The Executor has fiduciary duties and can become personally liable to the beneficiaries and creditors of the estate even if that was the result of his carelessness. Failure to properly administer the estate and placing the interests of the beneficiaries at jeopardy will likely result in the court removing the Executor, revoking the Grant of Probate and issuing a new Grant to another person.

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Samuel Burns
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As the executor of an estate, I engaged Graeme and his team to handle a family provision claim and probate matter. I found Graeme to be professional and knowledgeable. Throughout the entire process, Graeme treated all parties involved with respect. He was always willing to take my concerns onboard and never pushy. I find legal matters highly stressful. Having Graeme and his team guide the process helped ease the stress and achieve a fair resolution for all involved. Highly recommended.
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If you need legal representation in a matter to do with Wills & Estate law I highly recommend Graeme, Blaise and the whole team at Heckenberg. Their knowledge and expertise in this area of the law was a huge comfort at a very difficult time, saving all parties involved time and money in the long run. Thanks again!
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Blaise was extremely professional in assisting with all matters to do with my fathers estate and probate. She made an extremely complex process very easy to understand and instilled great confidence at a difficult personal time for our family.
Kim Pink
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I found Heckenberg Lawyers to be very professional and knowledgeable. Graeme took the time and explained the entire process to me. He was never pushy nor was he just after "his cut" as so many other practices are. He was at all times looking out for the best interest of the estate and not wanting it to be eaten. I found his staff to be extremely thorough and attentive. I would have no hesitations to recommend this practice if you want the best outcome possible.
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