Retracting a Renunciation of Probate

The Supreme Court of NSW generally prefers to have estates administered by somebody who is present in the jurisdiction, who is able to personally attend to their duties within the jurisdiction and, by reason of their presence in the jurisdiction, is amenable to court orders designed to enforce obligations attending a grant of probate or administration.

Ron Tee Lim died on 1 February 2018 leaving assets in New South Wales, with a gross value of about $1.783 million and a net value of about $1.773 million. Ron’s Will, dated 1 May 1986 left the whole of his estate

“to my … brother and sister in equal shares or to the survivor of them”.

Ron had named his brother Colin executor; Colin predeceased him; his sister Kaye, (an overseas resident) had renounced Probate in March 2019;

”renouncing all rights to probate of the Will to be made or given to me.”

In July 2019 Seema Virinder Singh made an uncontested application for Letters of Administration with the Will of Annexed (”letters of administration cum testamento annexo” or “c.t.a.”.) in the Probate Registry.

On 7 August 2019, an Acting Deputy Registrar in Probate raised a number of requisitions, including that

“[Ms Singh] has no beneficial interest in the estate and the Court will not make a grant to such a person …”

in the absence of special circumstances being shown to exist, the application would be rejected.

Referring to s 72 of the Probate and Administration Act 1898 (NSW) (”the Act”) the Acting Deputy Registrar suggested that the only proper way in which Kaye could withdraw

”[t]he executor/sole beneficiary will have to file an affidavit retracting [her] renunciation”.

Section 72 of the Act provides that the executor of the estate or any spouse or next of kin of the deceased applying for a grant of probate or letters of administration who lives overseas may appoint an attorney within the jurisdiction pursuant to a Power of Attorney and authorise the attorney to act on behalf of the executor or administrator who is not resident of Australia to apply for a grant of probate or letter of administration.

However, an application by way of an Attorney must be on such terms and conditions as the Court consider fit. 

The Court granted Kaye’s notice of motion seeking leave to retract the renunciation so that as executrix, or some other person within the jurisdiction, appointed under her power of attorney to act for her, and if so that administration may be granted to such attorney, on behalf of Kaye on such terms and conditions as the Court thinks fit.

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