#18721
Kangaroo
Flatchatter

    I agree with JT, I think you’re protected by s.118. If you haven’t received a new s.118, the OC can only act in accordance with the old one.

    Probate will be required as there is real property involved.

    There are 3 phases of managing a deceased estate:

    1) From Death until Probate

    No-one is allowed to “deal” with the property because the Court has not decided who has that right. This is the same principle as banks freezing the accounts of the deceased during this period. I suspect “deal” includes voting or writing a proxy.

    However, you might also check whether levies have fallen into arrears (which has some nice consequences) if you are still in this phase.

    2) From Probate until Transfer

    The Executor should submit a s.118 to notify their right to vote as a Trustee. And they should pay the levies as they have a duty to maintain and protect the assets.

    3) After Transfer

    The new Owner should submit another s.118 to notify their right to vote as an Owner.

    I also agree with Mountain man’s interpretation of what Schedule 3 Clause 10 (7) ought to say. The ambiguity arises when the Trustee is the same “person” as the (intended) beneficiary, which happens often. The clause should have distinguished between the two roles of the same “person”.

    Another piece of the SSMA to be rewritten! Until then, the words are all we have (apologies to The BGs) and smart lawyers (and I am neither) could argue either way.