plaintiff. Orders that leave be granted to Kaye Lim, the sole executrix named in the last Will dated 1 May 1986, of Ron Tee Lim, to retract the Renunciation of Probate that she executed on 29 March 2019; no...
Key principles
A renunciation of probate that has been filed may be withdrawn only with the leave of the Court; the Court will grant leave where it is appropriate in the interests of the estate...
Section 69 Probate and Administration Act 1898 (NSW) records that a filed renunciation operates to end an executor's right to a grant, but it does not eliminate the historical...
Where the named executor is resident outside the jurisdiction the Court recognises the testator's prima facie entitlement to choose that executor, but may prefer a person within...
Issues before the court
Whether a renunciation of probate that has been filed may be retracted, and on what basis the Court should grant leave to retract.
Whether a non-resident executor who renounced may nonetheless obtain a grant or have an attorney in the jurisdiction obtain administration on their...
Plain English Summary
The sole named executrix and beneficiary, Kaye Lim, had filed a renunciation of probate. She applied to the Supreme Court for leave to withdraw that renunciation so she could take probate (or have an attorney take administration on her behalf). The Court held that while a filed renunciation can only be withdrawn by leave, the Court should grant leave when doing so will benefit the estate or those entitled under the will and will not upset an already-commenced administration. Because Ms Lim was the sole beneficiary and there were no competing interests, Hallen J granted leave to retract the renunciation and directed procedural steps for a grant to be made; no order as to costs was made.
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Deep Dive
2,058 words · generated 05/07/2026
What happened
This was an application in the Supreme Court of New South Wales (Equity) by Kaye Lim for leave to retract a renunciation of probate she had executed and filed in relation to the last will of her brother, the late Ron Tee Lim. The factual background is succinct:
Cited legislation
1 cited instrument linked from this judgment.
The deceased died on 1 February 2018. His will dated 1 May 1986 left the whole estate to his brother and sister in equal shares or to the survivor of them. One brother executor had predeceased the deceased; the surviving named executrix and sole surviving beneficiary was Ms Kaye Lim (Introduction [1]–[3]; Background Facts [1.1]–[1.3]).
Ms Lim executed and filed a Renunciation of Probate on 29 March 2019 (notarised in Singapore) and later an affidavit indicated she was unwilling to apply for probate (Background Facts [1.5]; see also the Court file material).
Another person, Seema Virinder Singh, applied to the Registry on 10 July 2019 for administration with the will annexed as an uncontested Registry application. Ms Singh had no beneficial interest in the estate (Background Facts [1.1]–[1.2]; Registrar requisitions [Background Facts 1.6]).
The Acting Deputy Registrar in Probate raised requisitions noting a practical problem: an application for a grant could not be made to a person with no beneficial interest in the estate unless “special circumstances” were shown, and suggested that the named executor/sole beneficiary should file an affidavit retracting the renunciation (Background Facts [1.6]–[1.7]).
Ms Lim then applied to the Court for leave to retract her filed renunciation so she could obtain a grant (or have an attorney appointed under power of attorney within the jurisdiction obtain administration on her behalf, statutory mechanism under s 72 PAA 1898 was noted) (Background Facts [1.8]–[1.11]; Determination [final directions]).
Hallen J granted leave to retract the renunciation, concluding that the retraction would be for the benefit of the estate given Ms Lim’s position as sole beneficiary and that granting leave preserved the testator’s choice as to executor (Determination [2]–[4]; Orders).
Why the court decided this way
The decision rests on two linked legal propositions and their application to the facts.
Legal framework and basic propositions
Statutory effect of renunciation: s 69 of the Probate and Administration Act 1898 (NSW) provides that upon renunciation the executor’s right “shall wholly cease” and the representation and administration will proceed as if that person had not been appointed (Determination quoting s 69). That provides a statutory baseline: a filed renunciation has legal effect.
Historical/common-law practice: the Court accepted the established common-law rule that an unfiled renunciation can be withdrawn at any time before filing, whereas a renunciation that has been filed requires leave of the Court to be withdrawn. That proposition was traced through authorities and textbooks relied on by the Court (Determination: references to textbooks and cases).
The controlling practical criterion: when leave is sought to withdraw a filed renunciation the applicant ought to show that leave will be for the benefit of the estate or those interested under the will and that retraction will not upset an already-commenced and continuing line of administration. The Court referenced and adopted the practical approach in Re Estate of Daphne Lillian May Thurston, and earlier authorities such as Re Stiles and Re Lawrence, which identify that mere change of mind is not usually sufficient, but that where retraction promotes proper administration it should generally be allowed (Determination quoting and applying Re Thurston).
Application to the facts
The practical problem which had arisen in the Registry meant that, unless the renunciation were retracted, a grant could not properly be made to the named executor and the Registry would be obliged to reject a grant to a person with no beneficial interest (Background Facts [1.6]–[1.7]).
The core factual consideration was that Ms Lim is the sole surviving beneficiary under the will; there were only modest creditors and no other persons with a competing interest in the estate (Determination [2]).
On the facts, allowing Ms Lim to retract her renunciation preserved the testator’s choice and was, on balance, “for the benefit of the estate” because it allowed administration by the person the testator had chosen. There was no commenced line of administration that would be disrupted or other competing claimants whose interests would be prejudiced (Determination [2]–[3]).
Consequently, the Court exercised its discretion and granted leave, with directions that Ms Lim must execute a formal instrument of retraction and that the matter return to the Acting Deputy Registrar so a grant could be made (Determination [4]; Orders).
Before and after state of the law
Before this judgment the settled legal positions were:
Section 69 PAA 1898 gives statutory effect to renunciation once made, but courts have long recognised a distinction between unfiled renunciations (which may be withdrawn before filing) and filed renunciations (which may only be withdrawn by leave of the Court). Authorities such as In the Goods of Morant, In Re Goddard, and Melville v Ancketill were cited as historical authorities for these propositions (Determination).
The case law, including Re Stiles and subsequent Victorian and Queensland authorities, developed the practical test: leave should be granted where retraction will benefit the estate or those interested or prevent a less appropriate line of administration being followed. Re Lawrence and Re Thurston discuss the interplay between statutory wording and historical practice (Determination; quoted passage from Re Thurston).
After this judgment:
Hallen J applied those principles to confirm that, where the named executor is the sole beneficiary and there is no competing line of administration, leave to retract a filed renunciation should be granted because it will be for the benefit of the estate. This decision is an application of existing principles rather than a new rule; it reinforces the practical criterion that the benefit of the estate/interested persons and the absence of interference with an existing administration are the decisive factors (Determination [2]–[4]).
The judgment also pragmatically recognises the statutory mechanism (s 72) permitting administration to be granted to an attorney for an absent executor and the Registry practice that requires clarity on whether the named executor maintains or withdraws a renunciation (Background Facts [1.6]–[1.9]).
Thus the decision reinforces and applies established authority to contemporary Registry practice: filed renunciations can be retracted by leave where it furthers proper administration and respects the testator’s choice.
Key passages with plain-English translation
Selected passages (court’s own words) with plain-English translations.
"An executor is the nominee of the will-maker not the appointee of the Court. Accordingly, she, or he, may refuse the office and one way in which this is done is by filing a renunciation of probate." (Determination)
Translation: The person named as executor serves because the testator chose them; they can decline the role, and they do that by filing a formal renunciation in court.
Quotation and recitation of s 69 PAA 1898: that a person who renounces probate “shall wholly cease” in respect of the executorship.
Translation: The statute says a renunciation has the legal effect of ending the renouncer’s entitlement to be executor.
"Because a renunciation is only effective when filed in court, clearly a renunciation may be withdrawn at any time before filing."
Translation: If someone signs a renunciation but it has not yet been lodged in court, they can undo it without needing the court’s permission.
Summarising Re Thurston: retraction will be permitted where it is for the benefit of the estate or those entitled under the will and will not disrupt an already-commenced administration.
Translation: The court looks to whether letting the person who renounced now serve will help the estate and the beneficiaries, and will not wreck an existing administration already in motion.
"Accordingly, the application to retract the renunciation made by Ms Lim should be granted."
Translation: Having applied the law to the facts, Ms Lim is the sole beneficiary, there is no disruptive administration, the court allows her to withdraw her renunciation.
When using these passages in practice, recall that the Court is applying established principles; none of these statements creates a novel legal test beyond established authority.
What fact patterns trigger this precedent
The practical test from this decision, drawn from authorities and applied by Hallen J, will be engaged in the following fact patterns:
A named executor has filed a renunciation and later seeks to withdraw it by application to the Court. That is the precise triggering fact.
The applicant is the sole or primary beneficiary under the will, or there are circumstances showing that permitting the named executor to administer would materially benefit the estate or those interested under the will.
There is no already-commenced administration (for example, letters of administration ad colligenda bona or grants in favour of others) whose continuation would be upset by retraction; or the retraction would be the best method to ensure orderly administration.
The named executor is outside the jurisdiction but can either act through an attorney within the jurisdiction or the Court is persuaded that the testator’s choice should be respected subject to conditions (reference to s 72 PAA 1898 and Estate de Wild principles).
Conversely, where letters of administration have already been granted and administration is well underway by another administrator whose position would be prejudiced, this authority indicates retraction will normally not be permitted.
Practitioners should therefore expect courts to ask: will retraction aid administration and beneficiaries, and will it upset a started administration?
How later courts have treated it
This decision is principally an application of pre-existing authorities; it does not seek to overrule or alter established lines. It cites and follows the approach taken in Re Estate of Thurston and other authorities. The weight of the judgment is practical reinforcement:
It endorses the Registrar practice of requiring clarity about a renunciation so that the Registry can process grants consistently with s 69.
It confirms that where a renouncer is absent from the jurisdiction the Court can still permit a grant, subject to conditions and the possible appointment of an attorney within the jurisdiction to act on behalf of the absent executor under s 72.
Subsequent courts considering similar facts will find this judgment supportive precedent for granting leave where the applicant is the named beneficiary and no competing administration has begun. It supplies an up-to-date paragraph of judicial reasoning that links Registry requisitions, s 72 options, and the longstanding common-law test.
Still-open questions
Several practical and doctrinal queries remain for future litigation:
Degree of evidentiary proof: The Court required that retraction be “for the benefit of the estate or of those interested”; the precise evidential threshold and quantum of proof has not been fixed; is a simple showing of beneficiary status sufficient in all cases, or will courts require demonstration of concrete administrative benefit?
Non-resident executors and enforcement risks: Where the named executor chooses to administer from overseas, the practical implications of enforcement of court orders and amenability to process may weigh more heavily in future cases; what precise terms and conditions should courts impose under s 72 to mitigate such risks?
Timing and competing administrations: The judgment reiterates the principle that retraction should not change the line of administration. Where letters ad colligenda bona or provisional steps have been taken, the line becomes murkier. What threshold of activity will lock the administration against retraction?
Costs and discretionary relief: Hallen J made no order as to costs given the applicant was the sole beneficiary; future cases may see differing approaches where third parties oppose retraction and incur costs.
Practitioners should therefore prepare to show clearly why retraction benefits the estate, to address enforcement and practical issues arising from non-residency, and to be ready to propose conditions the Court can impose to safeguard the administration where leave is granted.
Conclusion: Melville v Ancketill (as recorded in the decision of Hallen J in The Estate of Ron Tee Lim; Application of Kaye Lim [2020] NSWSC 322) applies established principles to a modern Registry context. It confirms that a filed renunciation can be withdrawn by leave where doing so serves the estate and those interested, and provides procedural guidance about steps the executor must take (formal instrument of retraction and Registrar process) to obtain a grant thereafter.
HIS HONOUR: This is an application, effectively, on the papers seeking the leave of the Court to retract a renunciation of probate.
The Applicant, Kaye Lim, who is the sister of the deceased, filed a notice of motion, dated 8 December 2019, in which she sought the leave of the Court "to retract the Renunciation of Probate executed by her on 29 March 2019 and filed in [the] Supreme Court of New South Wales" in proceedings for a grant of Probate of the Will dated 1 May 1986, of Ron Tee Lim (the deceased), who died on 1 February 2018.
The Applicant filed one affidavit, which relevantly provided:
"2. By Renunciation dated 29 March 2019 and filed in Supreme Court of New South Wales proceedings 2019/00139074 for a grant in the estate on 10 July 2019, I renounced all rights to probate of the Will to be made or given to me.
3. An Application has been made to this this [sic] court to grant me leave to retract my renunciation.
4. Pursuant to such leave, I retract my renunciation."
The matter was referred to the Court by an Acting Deputy Registrar in Probate for the determination of Ms Lim's claim as the leave of the Court is required.
[3]
The Background Facts
The Court file reveals far more information than did the Applicant's affidavit. I take the following facts from the contents of the Court file:
1. On 10 July 2019, Seema Virinder Singh filed a Summons for Administration with the Will of the Deceased Annexed, as an uncontested application in the Probate Registry.
2. Ms Singh's affidavit in support revealed that Ms Singh had known the deceased since 1999 and was "his legal guardian and [had] observed his signature on numerous occasions". It also provided, what might be regarded as, the usual information, including: matters concerning the due execution of the deceased's Will; a copy of the deceased's Death Certificate; that one executor, Colin Lim, who was the deceased's brother, had predeceased the deceased, having died in December 1993; that the deceased's sister, Kaye Lim, had renounced Probate of the deceased's Will on 29 March 2019; that Kaye Lim was the sole beneficiary named in the Will; that the deceased had left assets in New South Wales, with a gross value of about $1.783 million and a net value of about $1.773 million; and that notice of her application had been published in the "New South Wales On-line registry website" on 3 May 2019. Finally, in her affidavit, Ms Singh averred that she was "not aware of any circumstances which raise doubt as to my entitlement to a grant of administration of the estate of the deceased".
3. The deceased's Will, in fact, provided that the whole of his estate "both real and personal of whatsoever nature and wheresoever situate [was left] to my … brother and sister aforesaid in equal shares or to the survivor of them".
4. Ms Singh also relied upon an affidavit, affirmed by her on 20 May 2019, which provided evidence that the deceased "did not leave any person who at the time of his death was his de facto partner, for whom the estate or any part of it is required to be held under a statutory trust for the partner".
5. There was also a Certificate dated 2 April 2019, of a Notary Public of the Republic of Singapore, to which was annexed a Renunciation of Probate dated 29 March 2019, by Ms Lim, as well as another Certificate, also dated 2 April 2019, by the same Notary Public of the Republic of Singapore, to which was annexed a copy of an affidavit of Ms Lim in which she had stated that "I am unwilling to apply for Probate and renounce my position as Executor".
6. The application was processed in the Registry of the Court in the usual way. On 7 August 2019, an Acting Deputy Registrar in Probate raised a number of requisitions, addressed to the legal representatives of Ms Singh, noting, amongst other things, that "[t]he Plaintiff has no beneficial interest in the estate and the Court will not make a grant to such a person …" and that in the absence of special circumstances being shown to exist, as will justify a grant, the application in its present form would be rejected.
7. Commendably, the learned Acting Deputy Registrar in Probate suggested that "[t]he executor/sole beneficiary will have to file an affidavit retracting [her] renunciation". (The Court, otherwise, was bound to act upon the renunciation, as it had not been withdrawn in the only proper way in which it could be withdrawn, no application having been made to the Court for leave to do so.)
8. Helpfully, she also referred to s 72 of the Probate and Administration Act 1898 (NSW) which, relevantly, provides that when any person named as executor is out of the jurisdiction, but has some other person within the jurisdiction appointed under power of attorney to act for the person, administration may be granted to such attorney, but on behalf of the person entitled thereto, and on such terms and conditions as the Court thinks fit.
9. Subsequently, Ms Lim filed a Summons for Probate on 17 January 2020, as the sole surviving executrix named in the Will of the deceased.
10. Ms Lim affirmed the Affidavit of the Executrix on 8 December 2019. She disclosed her address as one in Singapore. Her affidavit confirmed many of the facts that Ms Singh had averred to in her affidavit (to which I have referred). Although there was some difference between the value of the net estate averred to in Ms Lim's affidavit (approximately $1.782 million) and that in Ms Singh's affidavit, the difference can be explained by the omission of legal costs as a liability in the former affidavit. Ms Lim also stated that she was "not aware of any circumstances which raise doubt as to our [sic] entitlement to a grant of probate of the Will of the deceased".
11. Despite the Acting Deputy Registrar in Probate having informed the solicitors who acted for Ms Singh, and who continued to act for Ms Lim, of the appropriate procedure and the steps to be taken, her application for Probate of the deceased's Will was by a person who was out of the jurisdiction.
[4]
Determination
Turning to the questions for consideration, as to the appointment of Ms Lim as the named executor even though she is outside the jurisdiction, reference should be made to Estate de Wild, deceased [2019] NSWSC 1128, in which Lindsay J was dealing with an intestate estate. However, his Honour noted at [17]-[19] and [25]-[26]:
"The justification for dealing differently with intestate and testate estates is thought to lie in respect for a testator's choice of an executor. A testator is, prima facie, "entitled" to choose his or her executor, wherever resident.
A testator's "entitlement" to have a non-resident executor granted probate of his or her will is not absolute. In a particular case, necessity or convenience of administration of an estate governed by a will might require that the estate be administered by a local resident: Bath v British and Malayan Trustees Ltd [1969] 2 NSWR 114 at 120-121; (1969) 90 WN (Pt 1) (NSW) 44 at 51-53.
The Court generally prefers to have estates administered by somebody who is present in the jurisdiction, able personally to attend to his or her duties within the jurisdiction and, by reason of his or her presence in the jurisdiction, amenable to court orders designed to enforce obligations attending a grant of probate or administration.
…
As contemplated by the section, the Supreme Court does have power to make grants to persons actually resident outside the jurisdiction: Mason and Handler, Succession Law and Practice (NSW) (Lexis Nexis, Australia, Loose Leaf Service), paragraph [1489.1]. Absence from the jurisdiction may result in a person being passed over (Mason and Handler, paragraph [1333.10]), but the jurisdiction to make a grant in favour of an absent administrator is thus accepted by an authoritative practice text.
Confirmation of that can be found in RS Geddes, CJ Rowland and P Studdert, in Wills, Probate and Administration Law in NSW (LBC Information Services, Sydney, 1996) at page 617 n 29. The learned authors there summarise the position thus:
'A Grant may be made to an absent executor but the Court is reluctant to appoint an absentee as administrator'."
Turning then to the renunciation of Probate, an executor is the nominee of the will-maker not the appointee of the Court. Accordingly, she, or he, may refuse the office and one way in which this is done is by filing a renunciation of probate.
Section 69 of the Probate and Administration Act, relevantly, provides:
"Where, after the passing of this Act:
(a) any person renounces probate of the will of which the person is appointed executor or one of the executors, or
(b) …
(c) …
the right of such person in respect of the executorship shall wholly cease, and the representation to the testator and the administration of the testator's estate shall, without any further renunciation, go, devolve, and be committed in like manner as if such person had not been appointed executor."
[5]
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Decision last updated: 31 March 2020
Orders that leave be granted to Kaye Lim, the sole executrix named in the last Will dated 1 May 1986, of Ron Tee Lim, to retract the Renunciation of Probate that she executed on 29 March 2019; no order as to costs (the Applicant to pay her own costs).
The present application before me is one for leave to retract the renunciation so that Ms Lim, as executrix, or some other person within the jurisdiction, may be appointed under her power of attorney to act for her, and so that administration may be granted to such attorney, on behalf of Ms Lim, and on such terms and conditions as the Court thinks fit.
The section provides relative certainty as to the circumstances that, of themselves, bring to an end an executor's entitlement to a grant of probate.
In Wills, Probate and Administration Law in New South Wales (1st ed, 1996, LBC Information Services) by Geddes, Rowland & Studdert, after referring to s 69, the learned authors write, at [69.07]:
"Because a renunciation is only effective when filed in court, clearly a renunciation may be withdrawn at any time before filing." (citations omitted)
The authorities cited by the learned authors establish that a renunciation may be withdrawn before it is filed: In the Goods of Morant (1874) LR 3 PD 151 at 152-153 (Sir James Hannen); In Re Goddard [1951] QWN 46. This is not the position here, as it is clear from the Court file, and accepted in her application, that Ms Lim filed the renunciation.
Yet, there is also clear authority that a renunciation of Probate may be withdrawn even after it is filed. However, after it is filed, the leave of the Court is required for its withdrawal: Melville v Ancketill (1909) 25 TLR 655. The application to retract the renunciation is made by notice of motion supported by an affidavit.
In relation to such an application, I cannot do better than quote a passage, written by Young J (as his Honour then was), in Re Estate of Daphne Lillian May Thurston [2001] NSWSC 144 at [13]-[19]:
"The rules as to retracting renunciations have been much the same since the Ecclesiastical Courts invented them two centuries ago. Prima facie s 69 of the Wills, Probate and Administration Act 1898 would appear to alter those rules because that section provides that where a person renounces probate the right of such person in respect of the executorship shall wholly cease. However, that section has been construed in other places, in identical legislation, as basically not altering the old practice at all, but merely showing that once a renunciation is filed then no further citation need be given to the person named as executor.
The authorities show that once one has renounced, then, unless there is something more, the renunciation should not be able to be recalled. It is not enough that the person renouncing has merely changed his or her mind: Re Gill (1873) LR 3 P & D 113. The headnote of that case says a person will not be able to withdraw a renunciation unless he can show that such retraction will be for the benefit of the estate or those interested under the deceased's will. It is hard to see how that comes from the judgment in that case as Brooking J noted in Re Lawrence [1982] VR 826.
The case which seems to lay down the principle to be considered is Re Stiles [1898] P 12. The facts in that case were that two executors were named in the will, A and B. B renounced so that A could take a grant in his name solely. A then took out a grant and absconded. It was held that B should be permitted to retract his renunciation and to take out probate. The reason was that this would be the best method of administering the estate.
One contrasts this case with cases such as Re Thornton (1826) 3 Add 273; 162 ER 479 where there is a renunciation and then letters of administration are granted cta to another person and thereafter the administrator dies and the original executor seeks to withdraw his renunciation. That is not permitted to occur because it would take the administration down an entirely different line to the one that has been commenced.
It would seem that so long as there is a reason for retracting the renunciation the Court should normally grant the application. This is because it is the right of any testator to choose who shall administer his estate. Once that choice is made then it is only on very special grounds that the Court would choose some other person. If the person renounces for a particular reason and that reason ceases to be operative, then the renunciation should be allowed to be withdrawn.
The major textbooks indicate that it is only if it is shown that the retraction will be for the benefit of the estate or those interested under the will that it will be permitted. As Re Lawrence says at page 829, this is an overstatement. However, the principle is true to a certain extent, ie that it must be in the interests of the estate for it to be properly administered, so long as there is no change in the line of administration.
The Court does not in my view examine, in this sort of case, whether one or other of the next of kin, including the person nominated as executor, who has previously renounced, would more speedily wind up the estate or might have less problems in so doing. The Court permits the person nominated by the testatrix to perform that duty in accordance with her wishes. All that has to be explained is why, having once renounced, the person renouncing should be permitted to withdraw."
It can be seen from the above, that an applicant should show that leave to retract the renunciation is for the benefit of the estate or of those interested under the deceased's Will. That is a question of fact: Re Ahern [1951] QWN 32 at 42 (Stanley J).
In my view, to allow Ms Lim to retract her renunciation of Probate would be for the benefit of the estate. She is, after all, the sole surviving beneficiary named in the deceased's Will and, other than a few creditors for relatively modest amounts, there are no other persons who have any interest in the estate of the deceased.
Accordingly, the application to retract the renunciation made by Ms Lim should be granted. The order was made in Court on the return date of the notice of motion.
The matter will now be referred to the Acting Deputy Registrar in Probate so that, after the procedure suggested is taken by Ms Lim, a grant of Probate of the deceased's Will can be granted. However, a formal instrument of retraction should be executed and filed before probate is granted: Re Lawrence deceased [1982] VR 826 at 831 (Brooking J).
There is no purpose to making any order for her costs, as Ms Lim is the sole beneficiary named in the deceased's Will. Mr Pappas, who appeared, did not suggest otherwise.
The Court:
1. Orders that leave be granted to Kaye Lim, the sole executrix named in the last Will dated 1 May 1986, of Ron Tee Lim, to retract the Renunciation of Probate that she executed on 29 March 2019 in respect of the said Will.
2. Makes no order as to costs to the intent that the Applicant pays her own costs of the application.