Keith Dudley (Deceased) [2013] SASC 22

The Supreme Court of South Australia was asked whether an executor’s attorney could apply for a Grant of Probate on the executor’s behalf.

The deceased prepared his Will in 1981, appointing his wife to be the sole executor and sole beneficiary of his estate. The deceased died in 2012 survived by his wife aged 87 years old.

At the time of the deceased’s death his wife lived in a nursing home in Queensland and was suffering dementia.

The wife had prepared an enduring power of attorney in 2005 which appointed both her husband and her son jointly and severally to act on her behalf.

The son wished to rely on this enduring power of attorney to act on behalf of his mother to administer the deceased’s estate.

Whilst the Court held that the enduring power of attorney was valid, it held that in order to appoint a person to perform the functions of a personal representative, the enduring power of attorney must specifically provide for the appointment.

In this case, the enduring power of attorney did not include a specific direction authorising the son to act as a personal representative on the wife’s behalf and therefore, the enduring power of attorney was unable to be relied upon for the purposes of applying for a grant of probate.

Notwithstanding this fact, the Court considered Rule 44 of the Probate Rules 2004 (SA) as an alternative. Rule 44 gives guidance as to whom can apply for a grant in circumstances that the executor is unable, due to their incapacity, to apply for a grant personally.

The Court found that as the wife was suffering from dementia, she was incapable of acting as an executor and considered who could apply on her behalf. If the wife had died without a Will, her son would be a person entitled to apply for a grant in her estate. Therefore, the Court found that the son was entitled to act on the wife’s behalf and apply for a grant of probate for the deceased’s estate.

Comment - The appointment of executors is a very important decision. It is recommended that in circumstances where only one executor is appointed, consideration is given to appointing alternative executors in the event the initial executor is unable or unwilling to act. This type of appointment avoids the uncertainty, costs and delay which occurred in this case. Had the deceased reviewed and updated his Will prior to his death, it is likely he would have appointed his son to be the executor of his will or to act in substitution of his wife.