Grant of Probate and Executors
Grant of Probate and Executors, the role of an executor is centred on the proper administration of a deceased’s estate. Often multiple executors are appointed to ease the administration process including obtaining a grant of probate, in the event that, one of the executors is unwilling or unable to act. However, this is not always this case. Sadly, the appointment of multiple executors can create a difficult situation whereby co-executors and beneficiaries are frustrated by conflict.
Identifying a rouge executor can be as simple as asking the question ‘in who’s interests’ is the executor acting?’ If they are not operating in the ‘best interests’ of the deceased or the beneficiaries a rouge executor exists. An executor acting outside these interests could delay the time in which a grant of probate is obtained and the property is administered, incur greater costs upon the estate due to inefficiency or compromise the value of the estate.
The case of Scharerien v Jones [2007] NSWSC 1429 is an example of how the law responds to uncooperative executors. This case concerned a deceased and his three daughters. The daughters were all named by the deceased as executors of the estate. One of the daughters allegedly prevented the other two from properly performing their duties, as a result of her failure to declare estate property and her hostility throughout their meetings. This prompted the pair to apply to the Court seeking a revocation of a grant of probate to allow the introduction of a new grant of probate to exclude the third daughter.
Following the presentation of evidence detailing the third daughter’s acts and omissions the Court found that on the basis of her actions she was not fit and proper to serve as an executor of the deceased’s estate. Her unwillingness to compromise meant that she was in complete disregard for the estates interests and the need to administer it. As a result, she could no longer be seen as a capable.
What this case exemplifies is that such situations have solutions. The fact that the other two daughters had been driven to the point of deadlock persuaded the Court to remove the obstructing executor. Like executors beneficiaries can also seek relief from rouge executors. For more on this area we refer you to our article titled ‘Removal of an Executor’.
The proper administration of an estate in accordance with the interests of the deceased and the stipulated beneficiaries is the duty if the executors.
Sydney Probate Lawyers are experts in all matters pertaining to probate law, the principal Graeme Heckenberg has over 25 years’ experience servicing clients in Sydney. If you would like more information on removing an executor or how to obtain a grant of probate, contact Sydney Probate Lawyers at (02) 9221 2779 or email info@hecken.com.au to make an appointment with of our Probate law team.