Posted: Friday, 4 January 2019 @ 13:43
Readers of this blog and website will know that one of my favourite probate applications is an application for inventory and account.
However there are certain circumstances when it should not be used and there are two examples which immediately spring to mind.
Example 1 - If Probate has not been obtained. If probate has not been obtained you cannot make the application though there is a work around if this is the case. You can try to pressurise the executor to take probate.
Example 2 - If the beneficiary does not have an interest in the estate or the executor has made an admission of assets. An admission of assets represents a move by the executor to accept liability for the sum as claimed by the Applicant.(beneficiary).
Recently I was involved in a case where a Respondent sought to rely on this defence. The District Registrar took a dim view of this defence primarily as there was so much else going on and the Judge did not have sympathy for the other side.