Ability of executors of deceased estates to take court proceedings before probate

John Creser made this Official Information request to Ministry of Economic Development

The request was refused by Ministry of Economic Development.

From: John Creser

Dear Ministry of Economic Development,

Does the Official Assignee consider the executor of a deceased estate to have the standing to take and conclude Court proceedings in bankruptcy, before the executor is required to obtain probate?

Yours faithfully,

John Creser

Link to this

John Creser left an annotation ()

The legal position concerning the trustee’s limited power to act before probate is clearly expressed in the ninth edition of Nevil's Law of Trusts "ISBN 0408714778" at page 462 [19.2] as follows;

" For instance, the executor can commence an action although probate must be obtained before the date of hearing. In fact the executor can do anything that could be done after probate, up to the point where someone with whom he or she is dealing requires proof of title. Then he or she must obtain probate Thus if a debtor refuses to pay his or her debt to an executor acting without a grant of probate, the Court will stay proceedings until the grant is obtained."

Link to this

From: Grant Slevin
Ministry of Economic Development

Dear Mr Creser, Your request is refused under s 18(e) Official
Information Act 1982 because the information does not exist and
under s 18(h) because the request is frivolous or vexatious. If you
are dissatisfied with this decision you may ask the Ombudsman to
investigate and review it under s28(1)(a)of the Act. Regards, Grant

Link to this

John Creser left an annotation ()

The refusal to answer this request has been referred to the Office of the Ombudsman.

The question in my view cannot be considered frivolous. It concerns the legal policy adopted by the assignee in the administration of deceased estates and its in the public interest to know with certainty what their policy is. There is a simple yes or no answer to this question.

Link to this

Things to do with this request

Ministry of Economic Development only: