Baldwin and Neale v Greenland

[2006] QCA 293

Queensland Court of Appeal

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Interrogate

Catchwords

1. Succession
2. › Executors and administrators
3. › Removal of executor
4. › Jurisdiction to remove executor before grant of probate
5. › Whether court must find executor not a 'fit and proper person'
6. › Whether past mismanagement of deceased's affairs during lifetime sufficient ground
7. › Succession Act 1981 (Qld), s 6(1)
1. Succession
2. › Executors and administrators
3. › Removal of executor
4. › Discretion under s 6(1) Succession Act 1981 (Qld)
5. › Whether statutory discretion broader than inherent jurisdiction
6. › Overriding concern being due and proper administration of estate
1. Trusts
2. › Trustees
3. › Removal and appointment of new trustees
4. › Power of court to appoint new trustees
5. › Trusts Act 1973 (Qld), s 80

Quick Take

An executor may be removed under s 6(1) of the Succession Act 1981 (Qld) where the court reaches a firm conclusion that the due and proper administration of the estate would be put in jeopardy, without needing to find the executor is not a 'fit and proper person'. Past mismanagement of the deceased's affairs during the deceased's lifetime is a sufficient basis for removal, particularly where the testator's declining mental capacity prevented the testator from acting to remove the executor.