ISSUES

Whether certain conduct by a sole executor justified his removal.

FACTS

The Testator died on 8 December 2013 leaving a will dated 20 December 2000, which appointed her son as executor and divided her estate equally between her two children, her son (the executor) and his sister, (the applicant in these proceedings). 

The applicant and respondent were estranged.

The applicant had also unsuccessfully sought leave to proceed out of time with an FPA and an appeal was still pending in that matter at the time of hearing this matter.

The estate consisted of at least 2 real properties at Hawthorne and Bulimba.  There was dispute about a third property because the Applicant contended that the Testator had a beneficial (but not legal) interest in the property.  That property was held by the respondent and his father as joint tenants and the parties’ father pre-deceased their mother.

Following the Testator’s death, the executor continued to manage the estate properties as he had during his mother’s lifetime.  He collected the rents in cash.  He paid expenses in cash.

Following an earlier hearing before Byrne SJA, the executor opened an estate bank account and all rents (and expenses) were paid from it.

He received and dealt with (through his lawyers) significant requests for information and documents.  He was cross-examined by the applicant about the expenses of the properties (which substantially exceed the income) and provided satisfactory answers.  He also provided satisfactory answers as to why several units were un-let for substantial periods of time, namely because they required repairs, which he undertook at no cost to the estate. Each was able to be rented at a higher rent than previous, due to the additional work.

The administration of the estate was substantially advanced and, subject to these proceedings, and the ultimate distribution of the estate, the administration was nearly completed.

DECISION

Ultimately, Mullins J held that the applicant had not discharged her onus to prove that it was necessary or desirable to remove the executor, especially at this late stage of the administration, when hr had remedied any defects in his conduct and provided documents and answers to her reasonable questions. 

She also noted that if the applicant wanted to prosecute her claims about the potential third estate property, then she could do so with the court’s leave under s49(2) Succession Act.

Mullins J indicated that she was minded to limit the executor’s indemnity to 90% of his costs, because his conduct of the administration had led (in part) to the application being brought.  But the final form of costs is not outlined in the judgement and Mullins J was critical of the manner in which the applicant had prosecuted her application after the executor remedied his defects. Read the full decision here.