In a recent case, a mother had appointed her 3 sons as executors. She probably thought since she had 3 sons this was the best approach. After she died, one son died leaving two sons who fought so badly that even after 7 years her estate was still not administered. In order to break the deadlock, one son (M), by Statement of Claim, sought a grant of probate on the basis that his brother be passed over as executor or, in the alternative, the appointment of an independent administrator. The other son, by cross-claim, sought a grant to him with his brother passed over. Ultimately, M abandoned his claim for a grant and sought only the appointment of an administrator. Judge Slattery observed the 2 brothers in the witness box and considered that their behavior towards each other suggested it would be unwise to leave one son as executor. There was a significant risk that the dispute would take precedence over the task of administration. He noted that sometimes the Court will “pass over” a named executor if, for example, the executor neglects their duty, wastes time or is badly behaved. He confirmed that the primary concern of the Court is to ensure the estate will be efficiently and properly administered. He noted that the Court will try to respect the Will-maker’s choice and that a certain degree of latitude should be tolerated to allow the chosen executors to act. However, in this case, Judge Slattery appointed an independent solicitor (Richard Neal) to administer the estate. Each party agreed to pay their own legal costs. The estate did not bear their costs.
Callaway v Callaway; The Estate of Aileen Margaret Callaway [2019] NSWSC 1275.
