Case Summary: Walker v Walker; the Estate of Ngaere Joy Walker, late of Mortdale [2016] NSWSC 92 (Slattery J)
Disagreements between Executors can have an immensely negative impact on the administration of a deceased Estate, from slowing down the distribution of the Estate to the beneficiaries named in the Will, to increasing legal costs and time-consuming, expensive court proceedings to resolve Executor disputes.
A good example of the issues that can arise when Executors are in disagreement can be seen in the recent New South Wales Supreme Court case of – Walker v Walker
The Estate of Ngaere Joy Walker, late of Mortdale. In this case, Ngaere Walker died in 2011 leaving a Will appointing two of her sons as her Executors. They were also equal beneficiaries under her Will with the Estate valued at approximately $1.2 million. By the time the court proceedings commenced in 2016 the Estate of the deceased had been uncompleted for five years as a result of the disputes between the brothers.
The relationship between the two brothers began to break down into disputes shortly after their mother’s death. These disputes led one of the brothers, Jonathon, to commence proceedings for relief under the Probate and Administration Act seeking orders that his brother, Stephen, be removed as an Executor of his mother’s Estate.
The disputes between the two brothers were about two matters:
Alleged loan advances made to Jonathon by the deceased and her late husband.
- Jewellery of the deceased that Jonathon claimed had been removed by Stephen after the deceased’s death and disposed of to Stephen’s daughter without accounting to the Estate for the jewellery.
During the court proceedings Stephen expressed that he was finally satisfied with Jonathon’s response in relation to the alleged loan advances and that he no longer believed Jonathon was indebted to the Estate for these loans. However, Stephen continued to contend that he had not removed jewellery from the Estate and that he had not failed to account for it. Finally, Stephen submitted that he would follow the Court’s directions on how the final distribution cheques for the Estate should be drawn and that he was agreeable to being removed as an Executor of the Estate.
The Court considered the legal principles that should be applied when considering the removal of an Executor, which centres around the due and proper administration of the Estate and the interests of the beneficiaries. The Court’s discretion to remove an Executor includes removal on the basis of gross misconduct or unjustified delay and ineffective co-operation among joint executors.
After considering all the evidence and the submissions made by the Executors, the Court found that there was little point in granting relief to remove Stephen as an Executor, as there were only a few steps remaining to complete the administration of the Estate. Removal of Stephen as an Executor would merely generate further expense for the Estate.
Disputes between Executors can have a detrimental effect on the administration of a deceased Estate by slowing down the distribution of the Estate to the beneficiaries. If you are an Executor in dispute with another Executor, you need to seek expert legal advice on the best and quickest way to resolve these disputes without commencing court proceedings to remove an Executor. Alternatively, if you are a beneficiary in a Will and disputes between the Executors is slowing down receiving your inheritance, you should seek expert legal advice on actions you can take to have the Estate finalised.
