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Robson v Robson helpfully outlines the process to follow when an executor has neglected to prove a will. In this case the named executor did not apply for probate, or renounce. No reasons were given. The substitute executor’s solicitors wrote to the executor when more than six months had elapsed inviting the named executor to renounce.

In the absence of a response the substitute executor applied for and was granted an order nisi (a provisional order that will become effective unless…) under section 19 of the Administration Act 1969 calling upon the executor named in the Will “.. to show cause why probate of the Will should not be granted to…” the substitute executor.

An application for an order nisi can be made where the named executor neglects to either prove a will or renounce probate within three months of the will-maker’s death.

If the named executor does not attend the hearing convened for the purposes of section 19 of the Administration Act the Court can make orders regarding administration and costs.

However, unlike section 61 of the Administration Act, which permits the Court to grant and order nisi and make it absolute in circumstances where a caveat against probate has been lodged; section 19 of the Administration Act does not specifically provide for an order nisi to be made absolute. This is addressed by Harland J at [11] and [12] as follows:

References

• Robson v Robson [2024] NZHC 3288
• Administration Act 1969, s 19