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September 5, 2017 |

Judge sets out circumstances in will dispute passing over executor.

A summary of the Judge’s comments as follows.

There are a large number of English cases where the Court of Probate has passed over an executor or revoked a grant of probate. That has been done on various grounds of which the following are examples:

  1. The executor was of bad character, had been convicted of manslaughter in relation to the death of the testator and was in prison:
  2. The executor had neglected his duties:
  3. The executor had intermeddled in the estate and refused to take a grant:
  4. The executor was away overseas:
  5. The executor was suffering from ill-health:
  6. The executor was of unsound mind:
  7. The executor was not competent to take probate:
  8. The executor had disappeared:
  9. The estate was insolvent:

His Honour also said:

‘In considering whether this it is an appropriate case to exercise the jurisdiction to pass over the named executor, I must have regard to the due and proper administration of the estate and the interests of the parties beneficially entitled to the estate. That is the guiding principle. I must also recognise that the jurisdiction is limited and that, in general, he/she, as a person who is named as executor by the testator, is entitled to a grant of probate. I also recognise that, in the ordinary case, a potential conflict of interest will not be sufficient to justify the exercise of the jurisdiction’.

 The Court’s jurisdiction to pass over a named   executor is a special and limited jurisdiction.  A court should not remove an executor chosen by a testator without good cause. I have had many clients ask me to make an application to the court on their behalf on the basis that the executor chosen by the will maker is not the right person to be executor.

The law in relation to executors being appointed is clear, but yet again nothing is just black or white in this area of the law. Generally, if the executor named was chosen then that is it. It is not good complaining about the inability of the executor to do the right thing. For example, a bankrupt is not prohibited from acting as executor or administrator.

However, for another example, there have been cases where bankrupt executors have been disqualified from acting as executor. Like all cases in wills and estates each court decision will be subject to the individual facts of each case scenario.

To allege conflict of interest between the executor and beneficiary is difficult and subject to the evidence of each case because the reality is that there is very often perceived conflict of duty in many family cases however often it is not until actual conflict of duty and actual harm has occurred before a court will interfere.

Eric Butler

ALPMA Law Society of NSW STEP Law Society of New South Wales Queensland Law Society Law Institute Victoria

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