Family Provision and the Lax Executor

Shirley Hartley died in June 2016 survived by her sons Craig, Shane, Peter and Damian.

Shirley executed her last will (“The Will”)in March 2015 appointing Shane as executor and leaving a property to Shane, Peter and Damian; a vehicle to Shane and the residue of the estate to Shane, Peter and Damian in equal shares.

Statutory Declaration


The Will was accompanied by a statutory declaration explaining that due to Shirley’s past financial generosity towards Craig, his drug addiction and alcoholism, imprisonment, and theft from her, the stress he caused to her during her cancer treatment and the restraining order she had taken out against him he was excluded as a beneficiary of the Will.

The Executors year

In the administration of an estate, there is a general principle that a period of 1 year from the date of death is a reasonable time within which an executor should administer the estate.

Craig applied for a revocation of the grant of probate seeking a grant of letters of administration to a reputable solicitor to be appointed as administrator and trustee in Shane’s place; submitting that Shane had failed in his performance as executor of the estate.

Standing


Shane submitted that Craig has no standing to bring the present application. However, the Court stated s 6 Succession Act 1981(Qld) provides broad jurisdiction in estate matters “as may be convenient”. Accepting Shane’s performance of his duties was “so lax” that if any of the named beneficiaries were the applicant, the Court would grant the application. Of particular concern was Shane’s failure to comply with his obligations as a litigant acting for the estate in defence of Craig’s family provision application filed in the District Court on March 2017.


Shane has not complied with a District Court order on 20 March 2019, to file his affidavit in the claim by 15 April 2019. Although the Court observed, Craig has been far from the model litigant, (in part because of his incarceration) but he has finally brought the application to remove Shane as executor.

Caselaw suggests that what constitutes standing varies depending upon the nature of the case and the nature of the asserted interest or right of the party whose standing is in question. The Court observed that Craig’s prospective interests via a family provision application with its legislative protection of the executor is a powerful indicator that this interest is sufficient to give him standing.

The Court adjourned the matter to allow sufficient time for it to become apparent whether Shane is conducting himself consistently with his duties as executor, including in his role as a party to the District Court litigation.

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