Application to Pass over an Executor

John Thornton died in April 2017, his Will made in March 2002 (“the Will”), appointed his son John as sole executor of his estate (“the Estate”). In the event that John predeceased or did not survive him for 28 days, his son Andrew was appointed substitute executor. The estate was given to both his children, equally. The estate consisted of at least six parcels of real estate. John and Andrew were specified beneficiaries of two discretionary trusts with John as the appointor. (The Appointor is the person or persons with the power to remove and appoint the Trustee.)

In 2018 Andrew made an application (“the probate action”) that John be passed over as the executor of the Estate and for him to be appointed administrator with will annexed. Andrew submitted that John purported to renounce his role as executor in December 2017. Andrew believes that John has failed to properly administer the Estate, wasted the Estate, and has engaged in misconduct in relation to the Estate prior to, and since, renunciation; that on 27 March 2018, John sent him the following text message

“Call me if you want executer of dad’s will”

Andrew submitted that John had a serious drug problem, often behaved erratically, threatened him, assaulted his mother, has failed to comply with, and has spent time in custody for breach of bail. Andrew believed that John had appropriated money belonging to the Estate; had obtained rent from properties forming part of the Estate and failed to account for this money.

Additionally John failed to insure or properly manage any of the properties, failed to pay rates or make arrangements with rating authorities, failed to liaise with mortgagees with respect to the properties,, due to the default position across the six properties with banks, there is a real risk that of foreclosure which needs to be addressed urgently.

The Court accepted that John’s conduct led to waste, loss, and unnecessarily burdened the Estate by failing to: collect the assets of the estate; determine whether the assets fell into the trusts or the estate; liaise with the creditors of the estate; satisfy the creditors of the estate; manage the estate properties; maintain the estate properties; pay rates or apply to have statutory debts put into abeyance; insure estate properties; and make efforts to call in, administer, or distribute the estate Additionally as he lived in one of the Estate properties this negated the ability for the Estate to benefit from rental income.

In March 2018 John’s former solicitors Genders and Partners, wrote to the Registrar of Probates outlining the difficulties encountered in the four months they had acted for John from May to September 2017; the reason that they ceased acting for John was that they lost confidence in their ability to instruct him in a timely manner in the administration of the Estate, that no funds were paid into trust and the solicitor was subsequently informed by John after ceasing to act for him that he had been in and out of prison during the time they were acting for him. Subsequently the solicitor was told that John had criminal charges pending and that he may serve additional time in prison.

The Court applied the two general principles governing passing over a person named as executor by a testator and entitled to a grant of probate; that the due and proper administration of the Estate has been put in jeopardy, or prevented, by the acts or omissions of the person named in his capacity as executor.

The Court accepted the evidence that John’s conduct led to waste, loss, and unnecessary burden to the Estate providing for the need to pass over John as he has wholly failed to administer the Estate and has caused loss to it. If he is not passed over, both the trust and estate properties are in danger of further loss; Pursuant to rule 33 of the Probate Rules 2015 (SA), if John is passed over, the Court is of the view that as John is passed over Andrew should be granted letters of administration with the Will annexed.

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