02 December 2022
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In Dore v Cairns [2022] QSC 238, the Supreme Court of Queensland recently made orders to remove both named executors in the will of the deceased.
The case related to the failure of the executors appointed to the estate of the late Sandra Marie Hutton to appropriately progress the administration of the estate. The deceased passed away on June 27, 2015 and, at the time of the application some seven years later, the estate had yet to administered by the executors appointed under the terms of the Will.
Under the deceased's will, Mr Cairns (her friend) and Mr Dore (her nephew) were appointed to be the executors and trustees of her will. In the event they could not act, the deceased nominated Geoffrey Charles Hope to be her executor and trustee. The evidence before the court established that the executors, Mr Dore and Mr Cairns, were not able to progress the administration of the estate, as in fact all communication between them had broken down and they could not work together as executors.
After back and forth communication and each executor seeking their own legal advice, Mr Cairns was personally served with the application and affidavit of Mr Dore on October 6, 2022. The application was set down for hearing on October 21, 2022. There were adjournments of the application based on indications to the court that Mr Cairns was of ill health and unable to appear. The court was ultimately satisfied that it was appropriate to determine the application notwithstanding Mr Cairns' absence.
The court was satisfied that in this case the continued appointment of the executors would frustrate the proper administration of the estate. The court granted the parties time to make submission as to whether the alternative executor under the will, Mr Hope, should be appointed but, for completeness, also made orders that if Mr Hope was unable to be found or was unwilling to act, Mr Dore and Mr Cairns were to be removed as executors. The grant of probate to them was to be revoked and letters of administration of the will of the deceased were to be granted to an independent administrator, Mr Wiedman.
The case illustrates the problems that can arise when testators fail to give careful consideration to selecting their executors. It is important to be sure that the people appointed as executors can work together to efficiently administrator the estate. That may mean appointing someone outside the family as executor, particularly if there is a history of tension between those you may be considering appointing. This case is a good example of the delays and complexities that can arise when executors are unable to communicate correctly and fully comply with their duties as executor.
Author: Kylie Wilson
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