The Position of Executors Before Grant

At common law, an executor derives their title to the deceased’s assets and authority to deal with them from the will. In New South Wales, this position is changed, or modified, by ss 44 and 61 of the Probate and Administration Act 1898 (NSW). How these provisions operate has long been a matter of perplexity and the subject of inconsistent decisions.

This presentation by Justice Richard White, Supreme Court of NSW will discuss whether there is a conflict between the decisions of the Full Federal Court in Byers v Overton Investments Pty Ltd (2001) 109 FCR 554 and the NSW Court of Appeal in Deigan v Fussell [2019] NSWCA 299.

It will also discuss the High Court’s decision in Andrews v Hogan (1952) 86 CLR 223 and the practical implications for executors of the uncertainty of the current law.

The session will be introduced and chaired by Ian Davidson SC, Chair of the Succession and Protective Law Committee.