Probating a will is generally accepted as an essential step to allow executors to administer an estate. However, where there are challenges or other complications, it is important to appreciate that there may be steps that can be taken without probate.
As executors derive title from the will, rather than probate (which merely proves the will) there are steps that can be taken prior to probate pertaining to the office of executor. See Kelsey v Kelsey at 542 and Between Death and Probate.
When dealing with a will-maker’s estate, the position of the executors can be considered analogous to that of trustees with the attendant duties and obligations.
In appropriate circumstances, the absence of probate does not mean that executors cannot act in the best interests of an estate.
References:
- Kelsey v Kelsey [1992] All ER Rep 537
- Administration Act 1969, s 4B
- Christie v Foster [2019] NZCA 623 Chetty v Chetty [1916] 1 AC 603 (PC) at 60
- Chetty v Chetty [1916] 1AC 603
- 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
- Re Pawley and London and Provincial Bank
- [1900] 1 Ch 58; Wankford v Wankford (1704) 1 Salk 299, (1704) 91 ER 265. 4
- Marley v Mutual Security Merchant Bank and Trust Co Ltd [1991] 3 All ER 198 (PC) at 203
Matters of Trust 
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