Part II - A review of their initial proposal

Assertion 1: Joint Application for Probate

Legal Provision:
Under the Non-contentious Probate Rules 1967 (WA), a joint application can be made by co-executors named in the will. However, this must be agreed upon and documented by all parties.

Fact Check:
The agreement to withdraw the application and file a joint one should be documented. If the agreement was contingent on specific conditions that have since changed, this needs to be communicated.

Conclusion:
This assertion relies on a previous agreement that may no longer reflect the current situation.

This was agreement was purportedly made on my behalf, by solicitors that I had not yet agreed or even concluded discussions with them regarding representation and had not entered into an arrangement that would give them the authority to enter into a binding agreement on my behalf. Therefore, previous discussions and any agreement that they had reached with my former solicitors is a moot point.

Assertion 2: Objection to Caveat

Legal Provision:

• A caveat can be lodged to stop the grant of probate if there are concerns about the will or the executor’s suitability. The caveator must substantiate their objection within a specific time frame (six months as per Rule 33 of the Non-contentious Probate Rules 1967), refer to my other posts regarding dealing with the caveat process itself.
• The more interesting point is the second and it is also odd that they frame it in that way. I have only 2 options at this point, apply for the court to remove the caveat or commence contentious proceedings against their client. The preferred option which is not within my control, is for my sister, the caveator to withdraw the caveat as it serves no purpose other than prevent my application from proceeding.
• I would have thought that the obvious next step for their client would have been to do as I thought we had agreed, either permit my application to proceed and provide consent. Allow me to get on and use my expertise to deal with the administration of the estate in an efficient and thorough manner. Or, file your application to join mine before it has been brought before the registrar and probate is granted to me.

Fact Check:
The caveat was still in force at the time, so any objection needs to be based on whether there were substantive grounds for the caveat. If the caveat was lodged without proper grounds, you can contest it.

Conclusion:
Their assertion is valid as long as the caveat is in force. However, the burden is on your sister to substantiate the caveat. Refer to the copy of the caveat itself for the details but essentially, there was no claim or challenge regarding the validity of the will or its execution. The caveat simply asserts my UK residency and incorrectly states that I lied about it in my application and then calls out that I haven't provide any sureties, which even if those provisions of the act did apply to my circumstances, I would not need to provide any such surety without first being heard by the registrar.

Further, whilst the caveat remains in effect, no application is able to proceed. Therefore, should the caveator want to apply to join me as co-executor then that would be just fine but would require her to also withdraw the caveat should she wish for our application to proceed.

The other basis they claim for raising the caveat was that I did not provide adequate notice to their client. I'd argue that 2 months of trying to get our joint application together was more than enough notice. If their client had long enough to obstruct our joint application over the prior 2 months, and being fully informed and aware of the visit to Perth to complete and file our joint application. To then ignore me and my requests for her to review our joint application and the affidavit that I had drafted for her, because she was away for a long weekend in Busselton. I think she was provided with more than enough notice and I'm willing to fight that in court if it were to progress to that.

Assertion 3: Non-Resident Executor

Legal Provision:
Non-resident executors may be required to provide surety or a bond to ensure proper administration of the estate.

Fact Check:
Non-residency alone does not disqualify someone from being an executor. It may, however, necessitate additional measures like surety to ensure the estate is managed properly.

Conclusion:
This point is relevant but not a disqualifier. It highlights a procedural consideration rather than a substantive objection.

Suggested response

Legal Chatty G kindly drafted a response for me, you'll see from my next post however that I didn't use Legal ChattyG's suggested letters.

Caveat in Force:

• Acknowledge that the caveat is still in force and explain your basis for objection if you believe it was lodged without substantive grounds.
• Emphasize your willingness to resolve this matter efficiently.

Non-Resident Status:

• Address the non-residency issue by outlining your willingness to comply with any requirements, such as providing surety.
• Reiterate your commitment to fulfilling your duties effectively despite being a non-resident.

Procedural Clarification:

• Reference authoritative guidance, if any, received from the Registrar or other legal sources to support your current position.

Dear Mr. Dawson,

I acknowledge receipt of your letter dated 15 January 2024 and wish to address several points raised:

Previous Agreement for Joint Application:
While there may have been an initial discussion regarding the withdrawal of my application in favour of a joint application, circumstances have changed. I no longer find it feasible to withdraw my current application. My priority is to proceed with the application in the most efficient and lawful manner possible.

Objection to the Caveat:
The caveat lodged by your client remains in force. However, my objection is based on the belief that it was lodged without substantial grounds, causing unnecessary delays. I request that your client provides the necessary substantiation for the caveat to avoid further procedural complications.

Non-Resident Status:
I acknowledge that I am a non-resident and currently domiciled in the United Kingdom. I am prepared to comply with any requirements, such as providing surety, to ensure the proper administration of the estate. My non-resident status does not impede my ability to act as an executor.

I remain open to collaborating with your client to facilitate the joint administration of the estate. However, any further propagation of misinformation or threats of unnecessary legal action will not be productive. I propose that we focus on resolving this matter in a manner that respects the interests of all parties involved and honours the wishes expressed in the will of our late mother.

I look forward to your cooperation in bringing this matter to a satisfactory conclusion.

Yours faithfully,

The Non-Resident Executor