Removal of Executor

Peter Power died in January 2016 he is survived by his wife, Lynne and two adult sons from his first marriage. Peter made his last will in September 2014, naming his brother and sister as executors. Probate of the Will was granted in April 2016.

Peter left his estate to Lynne, and in the event she did not survive him, to his two adult sons and Lynne’s three adult children as tenants in common in equal shares.

The executor applied for a grant of probate filing an inventory of assets and liabilities. Since probate was granted, a further $81,430.60 in assets has been discovered.

In June 2016, Peter’s sons commenced a family provision claim. Lynne sought the removal of the executors on a number of grounds.

Peter had made a binding death nomination to Lynne in respect of his superannuation intending the funds to be used to pay out the mortgage over their family home. However the executors contested the validity of the nomination submitting to the superannuation trustees that Peter lacked the capacity to make such a nomination and that the funds be paid to the estate instead. As a result the estate incurred costs investigating whether the binding nomination was valid and Lynne was unable to use the funds to pay off the mortgage on her home.

Lynne believes that the executor’s objection to the validity of Peter’s binding death nomination was in order to increase the assets of the estate to assist Peter’s sons (the executors’ nephews), in a family provision claim. The executor’s solicitors wrote to Lynne’s solicitors in July 2016 asserting they have obligations to the sons, as well as to Lynne.

The executors’ questioned Lynne’s entitlement by survivorship to her jointly owned family home. Similarly they believed that Lynne’s solicitors had a conflict of interest, as her first husband was a solicitor employed by the firm, and they refuse to assist in relation the administration of the Peter’s estate.

Lynne believes the costs of around $43,000 incurred by the executor’s in relation to their administration and legal fees when the estate assets are not complicated and amount to around $122,268 are excessive.

Lynne argues the executor’s are undermining her interests as the sole beneficiary of the estate and as a result of these actions, have breached their duty of undivided loyalty to the sole beneficiary of the estate, are in clear conflict with her, with scant or little regard to her best interests and have diminished the meagre assets of the estate.

The Court agreed and removed the executors and appointed Lynne as the administrator of the estate with the will annexed. The executor’s are to provide details of the costs to Lynne and, in the event that agreement cannot be reached, the Court will determine it.

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