Podcast: Legislative hurdles
A Deep Dive podcast into addressing the legislative hurdles a non-resident executor faces when applying for a grant of probate in Western Australia.
Part I: Addressing legislative hurdles as a non-resident
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Part II: Addressing legislative hurdles as a non-resident
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- Outdated Legislation: The source repeatedly highlights how the Administration Act of 1903, and associated rules, are no longer relevant in the modern context of a globalised and digitally connected world. This is particularly true in cases like this where the estate is relatively straightforward, consisting primarily of monetary assets rather than physical property.
- Discriminatory Provisions: The Act contains provisions that allow for discrimination against non-resident executors. They can be replaced, passed over, disregarded, or removed under sections 34, 36, 37, and 38 of the Act. Section 36 is particularly prejudiced, equating non-resident executors with those deemed "unwilling or incompetent or non-existent".
- Requirement for a Guarantee (or Surety): While the Act and Rules seem to require a guarantee for grants of administration, they are silent on its necessity for grants of probate. This distinction is crucial, yet the executor's solicitor and the Caveator's solicitor both insist on the need for a guarantee, potentially misinterpreting the Act.
- Difficulty Obtaining a Guarantee: The executor has been unable to find suitable guarantee options from Australian insurers that meet the Court's requirements. UK-based policies are available but may face complexities in the event of a claim due to being governed by UK law. Other options, like extending professional indemnity insurance, are complex and may not cover all parties involved.
- Suspicion and Misunderstanding: Due to the executor's non-resident status, there is a heightened sense of suspicion and misunderstanding from the other parties involved, particularly the co-executor, referred to as the Caveator. This lack of trust is evident in the accusations of potential financial impropriety, even though the executor has a professional background in finance and understands the risks involved in such actions.
- Increased Scrutiny and Justification: Non-resident executors face greater scrutiny and must justify their appointment more rigorously than resident executors. This involves convincing the Court of their competence and demonstrating why granting them probate over a resident executor is in the estate's best interest.
- Logistical Challenges: Managing an estate from overseas presents inherent logistical challenges, despite advancements in communication and digital technology. Coordinating with banks, solicitors, and other parties can be time-consuming and complex, particularly when dealing with different time zones.
- Potential for Delays: Delays are more likely to occur when dealing with a non-resident executor, further fueling suspicion and mistrust. These can arise from the need to send and receive documents internationally, communicate across time zones, and navigate any legal challenges or misunderstandings that might arise.
