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probate, Wills

Between death and probate

Christie v Foster relates to complex inter-jurisdictional matters.  However, one aspect of the case relates to the more prosaic question regarding the role of the executor and when this takes legal effect.  This is considered  in Christie v Foster as follows at [62] to [66]:

[62] The Irish executors have applied for probate, but their application is currently stayed as a result of Sophie’s caveat.

[63] As the Associate Judge noted, there is some irony in the fact that Sophie having chosen to bring the New Zealand proceedings against the Irish executors and serve them, now claims they do not have any standing to protest the jurisdiction.

[64] On appeal, Ms Bruton submitted the Associate Judge was wrong to find standing.  She contended that in all the circumstances there is no certainty the Irish executors will ever get probate and as a matter of law without a grant of probate, the only power an executor has is the power to bury the body of the will-maker.  Ms Bruton further contended the appropriate stance for the executors was to remain neutral and that if a protest to jurisdiction was to be advanced it should have been Michelle who bore the carriage of the argument.

[65] It is however well established that an executor derives their title and authority from the will, not from any grant of probate.  That was clearly stated in the Privy Council decision of Chetty v Chetty, and has been followed in New Zealand.  As was explained in Chetty, on the death of the will-maker, the latter’s rights of action vest in the executor, and that accordingly the executor may institute proceedings in their capacity as executor before he or she proves the will.

[66] It follows we agree the Associate Judge was correct when he held the appellants’ authority vested from the time of Gwen’s death and probate if granted will be mere confirmation of that.

However, what is not clear is whether a grant of probate is required before proceedings filed or defended by an executor are heard.  As noted in Chetty:

6. Assuming, but without deciding, that this is to be deemed to be a suit which the testator would, if he were living, have a right to institute, the Lordships have come to the conclusion that this contention cannot be upheld. It is quite clear that an executor derives his title and authority from the will of his testator and not from any grant of probate. 1 he personal property of the testator, including all rights of action, vests in him upon the testator’s death, and the consequence is that he can institute an action in the character of executor before he proves the will. He cannot, it is true, obtain a decree before probate, but this is not because his title depends on probate, but because the production of probate is the only way in which by the rules of the Court, he is allowed to prove his title. An administrator, on the other hand, derives title solely under his grant, and cannot, therefore, institute an action as administrator before he gets his grant. The law on the point is well settled : see Comyn’s Digest ” Administration,” B. 9 and 10; Thompson v. Reynolds; (1827) 3 C. & P. 123 Woolley v. Clark (1322) 5 B & Ald. 744-

7. It would seem, therefore, that an executor is not only the legal representative of his testator, but capable of instituting a suit within the meaning of Section 17, Sub-section I of the Ordinance in question. There is nothing in the Ordinance to confine ” legal representative” to a person to whom the Court has actually made a grant. But, in their Lordships’ opinion, the words “capable of instituting a suit” mean capable of instituting a suit in which a decree might be obtained. The will under which the executor claims must therefore be capable of probate; otherwise the action must fail. It has to be determined, therefore, whether the testator’s will was in the present case capable of probate in the Straits Settlements. This question depends on the Civil Procedure Code Ordinance No. 31 of 1907.

This appears to reflect the position adopted in Re Masonic and General Life Assurance Co.

Editor’s note: This is not the position where letters of administration are required as there is no personal representative until the grant of letters.


  •  Christie v Foster [2019] NZCA 623
  •  Chetty v Chetty [1916] 1 AC 603 (PC) at 60
  • Re Masonic and General Life Assurance Co (1885) 32 Ch D 373
  • Administration Act 1969
  • Nevill’s Law of Trusts, Wills and Administration at 19.2 Nature of Office


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