17 May What is a grant of probate – cause of death – and missing persons

What is a grant of probate?

A grant of probate deals with the assets and liabilities of the deceased. But executors and administrators also have duties and rights concerning the deceased’s causes of death and body disposal.

The deceased

Cause of death- suing for damages and/or defending will challenges

It is important to consider whether the cause of death gives rise to any compensation or damages, for example, if the death was a result of a motor vehicle or work accident.   An executor or administrator of an estate can sue for damages and if successful, collect the monetary award, adding  to the overall assets for distribution.

Additionally, the cause of death and/or list of any medical conditions existing at the time of death, as stated in the death registration, might flag issues regarding the testamentary capacity of the deceased. Sometimes such comments are imprecise and unhelpful; ‘Dementia’ is a common one. Any disgruntled beneficiary or potential beneficiary wanting to make a claim will jump on that statement and claim that the will is invalid. Obtaining the deceased’s medical records might be a good idea where such issues arise.

Remains

The executor is responsible for dealing with the remains. Given a number of recent cases, an executor, and particularly an administrator, would be wise to consult with all relevant family members and/or other persons in relation to organ donation, funeral arrangements, and disposition of the deceased’s remains.

Simultaneous deaths

If this occurs with say spouses, there is an order of things regarding which will operate first.  The case of Re Tucker; Nunan v Aylward [2019] VSC 210 was such a case with an application for declaration of order of death.

Is the deceased intestate  (intestate (without a will) not interstate)

Intestacy arises where either the deceased leaves no valid will, or the valid will does not effectively dispose of all the deceased’s estate. A total intestacy arises where the deceased appoints an executor, but either does not direct how the estate should be distributed or all of the proposed beneficiaries have predeceased the testator.  We have seen this happen with home will kits not being correctly filled out.   A partial intestacy arises where only part of the estate is disposed of.

It should be remembered that a ‘will’ may not necessarily be a formal, typed and properly executed document but the law on this is not just black and white; it depends on the circumstances and there are various tests required to prove an informal will. Needless to say , it is safer to have a legally binding will in place then to rely on a hand written note made on the death bed.

Presumption of death and Missing Persons

Death can be presumed after seven years and the person cannot be found in certain circumstances.

Applications can be made seeking a court order authorising to deal with the property where the owner cannot be found or it is unknown whether that owner is alive or dead. State Trustees may be appointed and/or any person can apply to be appointed as administrator of the estate of a missing person if the executor does not wish to proceed to obtain a grant of probate.

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