Hypotheticals by Manny Wood. Published in the Coffs Coast Advocate on 5 December 2015.
When Jane’s father dies, she discovers that despite the fact that she is the sole beneficiary of her late father’s estate, her father appointed his accountant and long-standing friend, John to be his executor.
John has recently retired and spends a lot of his time travelling. Jane has attempted to contact him on a number of occasions and feels that John is not diligently fulfilling his role.
A year after her father’s death, the estate has still not been finalised and some of the assets are yet to be realised. Jane is also aware that the estate has a potential claim for damages against a third party that is running out of time.
Jane expresses her concern to John regarding the delay, but her concerns are not addressed.
Jane consults a solicitor regarding her rights and ultimately commences proceedings, seeking an order that John be removed as executor.
John is aware that he is entitled to be paid a percentage based “commission” out of the estate for his “pains and troubles” in administering the estate.
At the hearing, John argues that the proceedings are not necessary and that out of a sense of loyalty and duty to the deceased, he wishes to remain as executor.
The court found that the relationship between John and Jane had deteriorated to the extent that the administration of the estate was severely frustrated. The court decided that it was appropriate for Jane, as sole beneficiary of the estate, to be appointed as administrator and accordingly revoked the grant of probate that was made to John.
The choice of executor can be a difficult one. I generally recommend appointing an executor that is younger than yourself and that you discuss their appointment with them. I also suggest that appointing an executor who is not a beneficiary should be avoided in most circumstances, as should the appointment of multiple executors.
