Hypotheticals by Manny Wood. Published in the Coffs Coast Advocate on 29 October 2016.
This week’s column provides an example of the problems that can arise when appointing an inappropriate executor in your will and the importance of executors obtaining legal assistance to fulfil their duties.
Bob passed away six years ago. He made a will leaving the whole of his estate to his three children and appointed his brother, Bill as his executor.
Bill obtained a grant of probate within a year of Bob’s death, but he has failed to complete the administration of the estate, despite the expiry of 5 years.
Bob’s children say that Bill has failed to realise the assets of the estate in a timely way and that he has paid himself commission without authorisation. They say that Bill is not a fit and proper person to carry out the duties involved.
Bob’s children commence action in the Supreme Court, seeking revocation of Bill’s grant of probate and seeking the appointment of themselves as replacement executors.
The court hears that there are two blocks of land and a significant parcel of shares that remain in the deceased’s name and further, that Bill improperly paid himself $50,000 from the deceased’s bank accounts.
Bill failed to disclose the existence of the shares when he initially applied for the grant of probate.
The court also hears that Bill has not obtained legal representation to assist him with the administration of the estate, and that he has attempted to administer the estate “informally”.
By the time the court had heard the matter, Bill had repaid the $50,000 that he improperly paid to himself.
Nonetheless, the court ultimately had little difficulty in ordering that the grant of probate be revoked and that Bob’s children be appointed as executors, to facilitate the finalisation of the administration of the estate.
The court also exercised its discretion to make a costs order against Bill on the basis that he was to pay the costs of the court action personally. These costs amounted to approximately $50,000
