In the recent published reasons of Registrar C Boyle in Re
Janette Eleanor Counsel; Ex Parte The Public Trustee [2016]
WASC 47, the Registrar has reminded practitioners that the
obligation on an executor who decides to apply for Probate is to
prove the Will, not to undermine it by introducing contrary
evidence.
The executor's duty is to propound the instrument which the
testator has appointed him to propound. An executor cannot owe any
duty to take legal proceedings to destroy the instrument from which
he is appointed.
The Registrar noted that "in the first instance, it must be
the obligation of the executor to form a judgment about whether to
prove a will and in what form. It is the executor who must weigh up
any objections that the deceased lacked capacity, or was unduly
influenced, or that the will was a forgery. Having made that
judgment, the executor must back it by making an application and
adducing the evidence in support."
