Executor removed from office, has grant of probate revoked

The Supreme Court of NSW has recently delivered a judgment in James Justin O’Neill v Antony Patrick O’Neill [2015] NSWSC 644. The Court was asked to revoke a grant of probate to allow different people to be appointed to administer the estate and sell a property.

The fact circumstances of this matter are fairly unique as the deceased died over 12 years ago, and a grant of probate was issued not long after death to two of her children. Despite the time that had elapsed since the grant of probate, a large property at Rouse Hill, valued in the millions, had not been sold and distributed to the beneficiaries of the Will.

The beneficiaries and one of the executors, despite evidence of repeated attempts to communicate and discuss the sale of the property with the defendant, eventually brought legal proceedings in an effort to resolve the dispute.

What complicated this matter was a particular phrase in the Will that read:

“‘Final decisions regarding the property should be in the sole discretion of [the defendant] but only after full, fair and amicable family discussions.”

This phrase in the Will was likely to cause problems because of the broad nature of the expression and because it required the person that had the power to make decisions to work together amicably with the other co-executor. The intention of the deceased was obviously to avoid conflict, but ultimately that desire was not achieved. Issues like this do arise from time to time, which is why it is important to choose your executors wisely. You should also ensure that you set out your wishes clearly in your Will – after all, you will not be here to further explain your wishes and intentions!

The Court considered the evidence that had been put before it, and despite the defendant not appearing in Court for the hearing, found that by the defendant failing to act to administer the estate, and by refusing to communicate with the other executor, he was no longer a fit and proper person to hold the office of executor. Orders were made revoking the earlier grant of probate and trustees for sale were appointed to sell property at Rouse Hill.

Whilst the dispute was resolved by the Court, the delay in the beneficiaries receiving their inheritance from the sale of the property was significant. The legal costs associated with having trustees sell the property will also have the effect of reducing the estate able to be distributed. Additionally, capital gains tax will potentially apply to the sale of the property as it was sold more than 2 years after the date of death.

The legal costs of the proceedings would also ordinarily be paid from the estate which would further reduce the amount able to be distributed, however, due to the conduct of the defendant, the Judge ordered that the legal costs of the proceedings be paid from the share he was to receive from the estate.

There are lessons in this matter for people thinking about their testamentary wishes, executors who are charged with the due and proper administration of an estate, and beneficiaries who are still waiting to receive their inheritance. We encourage anyone who falls into these categories to consider their duties and obligations as well as the rights that they may have. If legal advice is required, contact us to discuss the situation as there is no substitute for the assistance experienced and qualified solicitors can provide.

    • This field is for validation purposes and should be left unchanged.