Dear Mrs Macaulay,
My mother's adopted mother died and left a will in 1990 with her nephew as the executor. Her nephew is a justice of the peace and a registered pharmacist. In the will, a house that was previously given to my mom and a parcel of land was bequeathed to her. The problem is that the executor always has some excuse as to why the will has not been probated, excuses including that the lawyer who was handling the transaction died.
Do my mother and the other beneficiaries named in the will have to rely on the executor to do what he's clearly reluctant to do? How does she go about getting the will (she has a photocopy of it) probated so the titles can begin to be processed in her name? Money was left to do so in an account which is not mentioned in the will and only the deceased's name is on it. How could this account be accessed to assist with some of the transfer fees, etc, seeing that it wasn't named in the will?
This is clearly a situation involving a deadbeat executor, because the one named and appointed in the will has seemingly done nothing since his aunt's death to perform his duty to the estate.
Your mother must first go to the Supreme Court's Civil Registry and ask for a search to be done whether or not an application for probate in the estate of her deceased mother's estate was filed, using the periods from shortly after her death to the date of the search. In order to be really sure, she should also check in the civil section of the Resident Magistrate's court for the parish she's in, for whether an application for probate was filed in that court.
As soon as your mother has her answer to her searches, she can then take action.
She should speak with the other beneficiaries and try to get them to agree to take the necessary legal action with her. If they agree, well and good, but if they do not, it does not really matter because she can make the necessary applications by herself, though she will then have to serve them as well as the nephew, the named executor, with the filed documents.
If the searches show that no application for probate was ever filed, she should apply, with the assistance of her own lawyer, to have the named executor ordered to bring in/produce the will of his deceased aunt, and for authority that she, you, or another person, be empowered to apply for the grant of probate instead of him. Your mother's application must be supported by an affidavit detailing all the facts, including her relationship with the deceased and the date of her death, and that she left a will. Her copy should be exhibited. She should say what the positions of the other beneficiaries are regarding the application.
Then she must deal with the fact that the deceased's nephew is the executor named in the will and that, assuming no application has been made, he has not made any application for a grant to be made as her searches in the Supreme Court and the Resident Magistrate's court show, and that by his failure to act for so many years, he clearly does not intend to act and so ought to be substituted by your mother or another person.
If he had applied but had not proceeded beyond that, then she must ask that he account from the period he consented and commenced acting, and that he be substituted based on his proven failure and lack of intention to continue to act. Since he is a justice of the peace, she and her lawyer ought to consider including a claim for an order that the additional liabilities the estate will have to meet for interest on the estate duties from a year after the death to date of payment, be paid by him, along with the costs of the application. I say this because as a JP, he knew or ought to have known what his inaction would mean for the estate. If he was not willing to do all that he had to do as executor, he should have declined to act as such from the time he saw the will after the testatrix's death.
You asked about the deceased's bank account. If and when your mother has filed her application, her lawyer can write to the bank for whatever funds may be needed to proceed with the necessary processes to settle the estate. In any event, once the court has ordered a substitution of the named executor and the new person has obtained a grant, that person can, on production of a certified copy of the grant to the bank, deal with the account.
Please note and remember that your mother would be entitled to be refunded all the costs and expenses she had to meet in pursuit of the grant, distribution, and bequests in the will and the due settlement of the estate.
Remember that any of the beneficiaries can apply to the Supreme Court to have the executor of the estate account to the court and the beneficiaries about his dealings with the estate and all the estate properties, and/or about any failure and/or misdeeds of the executor AND also for the executor to be removed and a substitution made in order to settle and wind up the estate.
So your mother should act with or without the active involvement of the other beneficiaries and she should do so as soon as possible.