Headshot of Lesley McDonnell - Senior Associate at Everingham Solomons TamworthWhilst the role of executor of a will cannot be forced upon a person, the role if accepted, means the executor “owes a fiduciary duty to the estate in exercise of each of the duties of an executor”. If an executor prefers his or her own personal interests to those of executor and intends to neglect his or her executorial duties, they can be removed from the office of executor and stripped of power as a recent case illustrates.

The deceased died in 2019 survived by three (3) adult children Scott, Marla and Donna.  By her will, the deceased appointed Scott as executor and left shares in a company to Scott and the rest of her estate to a discretionary Trust. The beneficiaries of the Trust included Scott, Marla and Donna. The effect of the will was to transfer the estate either to Scott or to the Trust for which Scott controlled the Trustee. Donna and Marla, having effectively been excluded from the estate, commenced family provision proceedings.

About 17 months before the deceased died, the deceased entered into what the Court described as a ‘series of extraordinary documents’ which had no commercial purpose but were designed only to avoid the existence of a fund upon which a family provision application could be made.

Of significance was a conversation that took place between Scott and Marla in 2019. The Court noted “The recorded conversation shows a deep-seated animosity of Scott towards Donna. In my view, in the recorded conversation, Scott reveals his intention to access the estate’s funds to fight any claim knowing that Donna will have to fund any legal fees herself. There is a plan stated by him to run her out of money”.

Probate of the deceased’s will was granted to Scott in early 2020.

Donna made an application to remove Scott as executor and revoke the grant of probate.

The Court noted “The starting point is that the choice of an executor is that of the testator and that choice ought to be honoured unless there is some good reason why the chosen executor ought not continue to administer the estate”. “Here, the applicant has made out an overwhelming case for the removal of the executor”. The transactions that took place 17 months before death “were designed… to defeat any family provision application by Donna and Marla. Scott has a clear interest in defending the inter vivos transactions. Therefore, a central question is whether that circumstance is likely to lead Scott to prefer his own interests to the due administration of the estate”.

The Court held “The proper administration of the estate will be frustrated by Scott continuing as executor. An executor should be appointed who will objectively consider the issues facing the estate”. Accordingly, the grant of probate to Scott was revoked and Scott was removed as executor of the will.

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