This is the message which has been expressed by Justice Davis in the recent decision of Re McLennan  QSC124, where despite there being no misconduct or unfitness demonstrated by the Executors, his honour removed both Executors of the estate and appointed an independent administrator.
The deceased, Lloyd John Wilson McLennan died on 18 September 2016 and appointed two of his children as Executors of his estate in his 2011 Will.
The Application was brought by one of the Executors who applied to the Court to replace both Executors with an independent administrator. Unsurprisingly the application was opposed by the other executor; however it was supported by a beneficiary of the estate.
Other complicating issues had arisen in the estate administration. Family Provision Applications had been made against the estate and there had been questions raised about the validity of an inter vivos transfer (a transfer in the deceased’s lifetime) from the deceased to one of the Executors of the estate.
As the Will appointed the two executors jointly, the powers of the executors were required to be exercised by them jointly. His honour, referring to the Executors, observed the following “they are now in conflict with each other, in particular by him denying her access to information concerning the estate despite the fact that it is common ground that Ms Speed’s purported resignation as executor was not effective.”
Whilst the Court has power to remove an executor, the Court will not lightly interfere with a testator’s appointment of executors. Its ultimate concern must be with the due administration of the estate in the interests of creditors and beneficiaries.
The power to remove an executor is discretionary. Section 6 of the Succession Act1981 (Qld) expressly gives jurisdiction to the Court to revoke probate of a will.
His honour concluded the following:
- At this early stage of the administration the two executors are at loggerheads;
- It is not necessary to determine whether the Executors are at fault in the administration, or whether he is fit or otherwise to occupy the office of executor.
- Even taking into account the respect which should be shown to the deceased’s choice of executors and taking into account the costs which will be incurred by an appointment of the administrator, a solicitor, as trustee, the due and proper administration of the estate is best served by the removal of the two executors named in the Will and the appointment of the administrator.
So what does this decision mean for Executors?
The sentiments expressed by his honour confirm that the governing consideration is the due administration of the estate. Accordingly if there is a dispute between the Executors of the estate which is delaying the proper administration of the Estate the Executors are at risk of being removed and replaced with an independent administrator.
What does it mean for Testators (Will-makers)?
The decision highlights the importance of appointing people as Executors of your Estate who can at least work together to administer the estate. There is no point appointing people as co-Executors of your estate when they are at loggerheads and can’t get on with administering the estate. At the end of the day all it will do is diminish the size of your estate and the ultimate benefit your beneficiaries will receive because of unnecessary legal fees in an Application being made to the Court to remove the Executors.