In New South Wales where an executor named in the Will has neglected or refused to prove the Will (or to renounce probate) within three months from the date of death a person with an interest in the estate – such as a beneficiary or a creditor – may apply to the court for a grant of letters of administration. s 75 of the Probate and Administration Act applies.
He that is named executor cannot be precisely compelled to stand to the will and undertake the executorship.
H Swinburne A Brief Treatise of Testaments and Last Wills London 1590 p208
An executor named in a will may renounce -before probate has been granted; or do nothing. If the later interested parties in the estate may apply to the Supreme Court supported by evidence showing why the executor should be removed under s 75 of the Act. The Court will consider:
- what is necessary for the due and proper administration of the estate and
- the interests of the estate’s beneficiaries.
The Court’s principal concern is to promote the orderly, efficient, and proper, administration of the estate according to the terms of the Will
If the executor is passed over or removed and there is no substitute executor named in the Will, the party making the application may ask the Court to appoint another person as the administrator of the deceased’s estate.
Background
Julie Anne Hill (the deceased) died on 31 March 2021 leaving property in New South Wales. The executor and sole beneficiary named in the deceased’s Will dated 14 November 1996 was Robert Hill, the deceased’s husband who predeceased her.
Both Richard Hill (the applicant) and Timothy Hill (the respondent) are the adult children of the deceased, the substituted executors, and the sole beneficiaries, as tenants in common in equal shares, of the whole of the deceased’s estate.
The Court accepted the evidence that the applicant and respondent, as substituted executors, do not get along, cannot meaningfully communicate, and that the respondent does not wish to participate in obtaining a grant of probate.
The principal asset of the deceased’s estate is real property in which the respondent resides. The respondent does not appear to have a legal right to remain in occupation, and he has not advanced any basis for doing so. There is no evidence that he has offered to pay any occupation fee.
Between May and September 2021, the applicant took steps to organise a cremation. The applicant submits that the day before the scheduled release of the body, the respondent did not consent to its release.
The deceased’s body has been in the custody of NSW Pathology in Forensic Medicine which charges a daily fee of $50 for the care and storage of a deceased’s body. In June 2022, about $17,500 of fees were owed; the estate does not have funds to pay the storage charges. The Court was informed, that:
“the fee has been paused for some six months to allow the proceedings to go on”
Hill v Hill [2023] NSWSC 612 at 12
However, the respondent consented to release the body on 28 September 2022.
The Matter
In December 2022, the applicant sought a grant of letters of administration with the Will dated 14 November 1996 of the deceased annexed to an independent administrator; the respondent failed to appear.
The Uniform Civil Procedure Rules (r 29.7) provide that when a trial is called on.
- (2) If any party is absent, the court—
- (a) may proceed with the trial generally or so far as concerns any claim for relief in the proceedings, or
- (b) may adjourn the trial.
In Hill v Hill [2023] NSWSC 612, the Court concluded that there was no utility in adjourning the matter again as there was no reason to believe that the respondent would be more likely to appear on any subsequent occasion to which the hearing was adjourned.
The decision
In appointing an independent administrator, the Court accepted that more than enough time had passed since the death of the deceased and although the respondent had numerous opportunities to be heard he
- did not file an appearance,
- has appeared on only two of the many directions hearings that have occurred,
- did not appear at several hearings;
by not meaningfully participating, the respondent has delayed the administration of the deceased’s estate.
The respondent should not obtain a procedural advantage including a further opportunity to remain in occupation of the property.
Additionally, the due and proper administration of the deceased’s estate according to the terms of her Will requires the appointment of an independent administrator.
The Court held that as the respondent did not meaningfully deal with the applicant, the proceedings were necessary however he should not be required to pay all the costs.
The applicant’s costs, limited to an appearance for a one-half day for the hearing, together with the preparation and service of documents necessary for the Court to make these orders and counsel’s fees should be paid out of the respondent’s share of the estate.