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Laws of Eve | What is the source of an Executor’s Authority? - Can an executor commence proceedings in court before obtaining a grant of probate?

Published:Thursday | July 13, 2017 | 12:00 AM

Persons who are lawfully entitled to carry out the wishes of deceased persons are called personal representatives. There are two types of personal representative - executors and administrators. An executor is a person appointed under a will to carry out the wishes of the testator (the person who made the will) while an administrator is the person appointed by the court to administer the estate of a deceased person who did not leave behind a will.

While many aspects of the roles of executors and administrators are common in that they must collect the deceased person's assets, pay his just debts and distribute his estate, there are many significant differences:

In carrying out his duties, an executor is required to apply for a grant of probate. (If there is a valid will and no executor is named in it, someone else could administer the estate, but he would be called an administrator.




An executor is required to distribute the deceased person's estate in accordance with his wishes as set out in the will, unless circumstances (for example, insolvency) force him to sell the estate's assets to pay debts rather than distributing them to the beneficiaries.

An administrator has no right or responsibility in relation to the deceased person's estate until he has been duly appointed by the court through a grant of letters of administration.

An executor "steps into the testator's shoes" and can carry out many acts immediately after the testator dies.

There are many events that could necessitate prompt action by the deceased person's personal representative even before probate or letters of administration are granted. For example, if a persons dies in a motor vehicle accident or has property that is occupied by tenants or under threat by squatters, or if there is a challenge to the validity of the will, an executor may need to participate in court proceedings before probate is granted.

While there are ways to obtain limited or emergency grants of administration so that someone has lawful authority to commence court proceedings when the deceased person had no will or had a will in which no executor was appointed, the law permits an executor to commence actions in court to protect the interests of the estate even before obtaining a grant of probate.




Based on my research, there are several cases that confirm that an executor can (and might have to) bring or defend a court action in his capacity as executor even before applying for probate. For this week's publication, I will only make reference to the case of Chetty v. Chetty [1916] 1 A.C. 603 - "It is quite clear that an executor derives his title and authority from the will of his testator and not from any grant of probate. The personal property of the testator, including all rights of action, vests in him upon the testator's death, and the consequence is that he can institute an action in the character of executor before he proves the will: He cannot, it is true, obtain a decree before probate, but this is not because his title depends on probate, but because the production of probate is the only way in which, by the rules of the court, he is allowed to prove his title."

In next week's article, I will look at other examples of cases in which executors participate before probate is granted and the some steps that he cannot take until then.

- Sherry Ann McGregor is a partner and mediator in the firm of Nunes Scholefield DeLeon & Co. Pleases end questions and comments to or