SUCCESSION — Executors and administrators — Proceedings against executors and administrators — Application for removal — Whether it is in the interests of the due administration of the deceased’s estate for the defendant to be removed as executor — Where defendant executor did not appear — Where executor residing in estate property beyond expiry of 12-month right of residence — Where communication between executor and beneficiaries infrequent — Whether executor delayed sale of estate property — Whether evidence indicates executor may not intend to sell and distribute estate assets
Quick Take
1A grant of probate may be revoked where the executor's unexplained and unreasonable delay in selling the principal estate asset, combined with a lack of communication with beneficiaries, demonstrates that the administration of the estate has completely stalled, even absent a formal finding of misconduct.
2A testamentary power to postpone sale of estate assets does not override the executor's primary obligation to call in and distribute the assets; where the evidence suggests the executor is not exercising the power of postponement bona fide but rather preferring his own interest over that of the beneficiaries, revocation of the grant is warranted.
3Under s 91 of the Evidence Act 1995 (NSW), findings of fact in NCAT reasons are not admissible to prove the existence of facts in issue in Supreme Court proceedings, consistent with the exclusion of evidence of judgments and convictions from Australian proceedings.
