Rosemarie Porteous & Ors v Georgina Hope Rinehart (as Executor and Trustee of the estate of Langley George Hancock) & Ors

(1998) 19 WAR 495; [1998] WASC 270

Supreme Court of Western Australia

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Interrogate

Catchwords

1. Equity
2. › Trusts
3. › Trustees
4. › Removal of trustees
5. › Conflict of interest and duty
6. › Whether conflict sufficient to warrant removal
7. › Whether immediate threat of mischief
8. › Trustees Act 1962-1978 (WA), s 77
1. Succession
2. › Executors and administrators
3. › Removal of executors
4. › Inherent jurisdiction of court
5. › Revocation of grant of probate
6. › Whether conflict of interest warrants removal
7. › Whether court has power to appoint substitute executor
8. › Administration Act 1903 (WA), s 45
1. Succession
2. › Executors and administrators
3. › Distinction between executor and trustee
4. › When executor becomes trustee
5. › Whether executorial duties completed
1. Practice and Procedure
2. › Parties
3. › Standing
4. › Beneficiary under will
5. › Whether plaintiff has standing where estate alleged to be insolvent

Quick Take

The Supreme Court of Western Australia has inherent jurisdiction to remove an executor by revocation of the grant of probate for just cause and to appoint a substitute executor, with s 45 of the Administration Act 1903 (WA) providing sufficient statutory basis for the appointment. The existence of a conflict of interest between an executor's duties to the estate and personal interests does not automatically warrant removal; the court must be satisfied that the conflict has caused or is likely to cause mischief at a reasonably high level of seriousness, and the dominant consideration is the welfare of the beneficiaries. Delay in bringing an application for removal is a relevant factor but not necessarily a bar where the court's interest in proper administration of the estate is engaged.