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Reserve Leave for the other

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Harryx View Drop Down
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  Quote Harryx Quote  Post ReplyReply Direct Link To This Post Topic: Reserve Leave for the other
    Posted: 02/July/2018 at 15:04
I have just received a letter from my brothers lawyer, that he is going to Apply for probate solely in my brothers name and reserving leave for me to come in later - what does this mean and can they just kick me off so easily?

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  Quote AussieLegal Quote  Post ReplyReply Direct Link To This Post Posted: 02/July/2018 at 16:51
Hi Harryx.

The law allows any executor to apply for probate in their sole name provided they inform you that they are making the application with 'leave reserved to you'.

This means that you are still a nominated executor, but that you are 'in reserve' and have the right to make your own separate application to be a joint executor. You are not 'kicked off'.

Depending on the State, you are not required to acknowledge this fact, or give your permission for you brother to do this. Thus your brother can do this without your permission.You can make your own application or request to be a joint applicant.

The question is, why is your brother doing this without involving you directly?

If the reason is a codicil or some reason why your share of the estate may be effected, then you may have reason to question it. If your beneficial interest in the will is effected by the will and codicil, please seek formal legal advice ASAP. You have a limited window to register your interest in the estate and challenge the will / codicil. This is done by placing a caveat on the estate / will / codicil (you will need a solicitor to advise you and do this for you).

Please do not hesitate in doing this if you have a concern!

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  Quote Harryx Quote  Post ReplyReply Direct Link To This Post Posted: 02/July/2018 at 17:19
Yes, that's exactly why his doing this, he want's to validate the unwitnessed codicil in favour of him and at my loss.    I'm also confused because in that same email from his lawyer they say that its entirely up to the court to decide the validity of the codicils and I have no choice but to agree to them being there.    The opposite of what your advice was.

I feel like I'm being steamrolled into agreeing to the $10,000 extra for him and if I don't they can just go ahead and do it anyway.

Kind Regards and thank you for your helpful advice,

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  Quote AussieLegal Quote  Post ReplyReply Direct Link To This Post Posted: 02/July/2018 at 17:52
Ultimately it is up to the Court to decide if the codicil is valid. But it is unlikely that a Supreme Court Justice will ever be asked to rule on this.

It seems from what you have described that it is your brother's obligation to establish that the codicil is, in fact, valid. You have a choice to do nothing, or resist. It is very likely that when your brother submits the application of the will and [informal] codicil, that the application is 'requisitioned' by the Registrar of Probate.

It may be that the requisition asks your brother to provide a consent from you to allow and agree to the codicil and its effects on you. If you resist, don't sign any consent!

If you do not provide the consent, then the process is usually suspended until an agreement is reached between the parties.

This is not legal advice - only information.

Please seek some formal legal advice before agreeing to anything.

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  Quote AussieLegal Quote  Post ReplyReply Direct Link To This Post Posted: 02/July/2018 at 17:55
Further, do not accept anything that your brother's solicitor is suggesting.

He/she is not representing your interests in any way.

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  Quote Harryx Quote  Post ReplyReply Direct Link To This Post Posted: 02/July/2018 at 18:37
I humbly thank you for your information - from here I'll have a think and decide which is the best way forward. As I don't want to fall into "the principal hole"

Best regards

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