Wednesday, April 26, 2023

Why?** will a court remove an executor

Posts over recent weeks have explored what issues a court will consider before a trustee of a trust is removed against their will.

Many of the themes mentioned are relevant to the issue of whether a court will remove an executor (or legal personal representative (LPR)) of a person’s will.

As a threshold issue, any person with an interest sufficient to entitle them to oppose an application for a grant of probate also has sufficient standing to seek revocation of a grant (see Re Hartley [2020] QSC 251).

As confirmed in Gardiner and Ors v Hughes and Anor [2017] VSCA 167 “…[I]n order to establish standing, an applicant for an order revoking a grant of probate or letters of administration must have a sufficient interest in the proceeding. Sufficiency of interest is established by showing that the applicant’s rights would or might be affected if the grant were to be revoked. The bare possibility of an interest will suffice."

The decision in Re Franks [2021] QSC 134 provides a useful summary of the key issues in this area.

In a situation where 2 executors were unable to agree on how to administer the estate (after a third executor had renounced their role due to the conflicts between the parties), one of the executors applied to the court for an independent executor to be appointed. Importantly, an executor can not resign without order of the court once probate had been granted. Furthermore, unless a law firm has joint instructions from the executors, they are unable to act.

The court confirmed:
  1. Similar to its role when there is an application for removal of a trustee of a trust, at the highest level, the question for the court when considering the removal of an executor is what is in the best interest of the persons who have an interest in the estate, including creditors and beneficiaries, and its due administration.
  2. A conflict between personal representatives is not solely determinative and there is no precondition of default on the part of any executor before the power of the court can be exercised (see Chesney & Anor v Tognola & Anor [2011] QSC 340).
  3. Due regard must be paid to the willmaker's wishes as to the identity of their LPR, however it should not be assumed that a willmaker who was aware of potential disputes among beneficiaries will also have anticipated disputes among the executors (see Baldwin v Greenland [2007] 1 Qd R 117).
  4. Ultimately, each case must turn on its own facts (see Re Flavel; Application by Lipshut [2018] VSC 228, Re McLennan [2018] QSC 124 and Mann Jnr v Grantham [2004] VSC 156).
Here there was held to be sufficient benefit in an independent administrator being appointed who would not need the agreement for joint action and who would not be compromised by conflicts of interest or personal interest. This was despite the nomination made by the willmaker in their will and the additional expenses the estate would incur.

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** For the trainspotters, the title of today's post is riffed from the Bronski Beat song 'Why?’.

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