A recent High Court decision has ordered the removal of three executors from an estate after they failed to complete their duties.

One of the executors brought the claim to remove all the executors two years after Probate was granted, as no steps were taken to distribute the estate to the beneficiaries in this time.

Shortly after the death of her husband one of the executors of the estate informed the other two executors that she wished to make an application for the division of relationship property, rather than receive the entitlements set out in her husband’s Will. This is within her rights as a surviving spouse and beneficiary of the estate.

The executors could not come to a decision on the relationship property.

Also one of the executors was holding property on behalf of the estate. When the surviving spouse requested that the executor in question transfer the property to be jointly owned by all executors she was ignored, with the most significant asset of the estate remaining in the ownership of just one of the executors.

The surviving spouse decided to bring a claim to the Court, seeking removal of all executors including herself.

The Court made its decision based on five reasons:

  1. The executors are at odds with each other, meaning the surviving spouse’s claim was not likely to be dealt with even-handedly by the other two executors;
  2. All of the executors failed to gather and secure the assets of the estate;
  3. The executors had taken no meaningful steps to progress the claimant’s relationship property claim;
  4. One of the executors moved to Thailand indefinitely, leaving his ability to perform his role in question; and
  5. There was a risk that the executors would make decisions that were in their own best interests, rather than acting in the best interest of the beneficiaries.

The Court deemed that independent executors would be more equipped to perform the role than the three current executors, and removed all of the executors accordingly.

The Court concluded the proceeding by stating that a new independent executor will be appointed. The lawyer for the surviving spouse proposed that the Public Trust could be appointed without its consent. The judge rejected this and directed the surviving spouse to file a consent to act from the Public Trust.

If there is confusion around the rights and obligations of an executor or beneficiary in regard to a Will, it pays to seek legal advice from a professional with experience in the area.


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Shaun Cousins & Matthew Binnie

Litigation Team