In a recent case a father had two sons and no other family. The father made a will naming the older son as his executor. The will said that the estate was to be divided equally between the two sons.

The older son obtained a grant of probate and everything appeared to be normal. However, three (3) years later the younger had not received anything. The younger son was sick of being ignored and so he applied to the Court to have his brother removed as executor. The younger brother also sought orders that he receive more than half of the estate because part of the estate assets had disappeared.

The Court hearing brought to light various irregularities including the older brother’s baseless claim that a clerk of the court had accidentally omitted the younger brother’s name from the probate application. Evidence showed that the older brother had taken $60,000.00 from his deceased father’s bank account. He claimed that it was for roof repairs for a property that formed part of the estate. He said he couldn’t provide receipts because it was a “cash job”. There was also evidence that the older brother would use estate funds to pay for his son’s fortnightly Taekwondo classes. He claimed this was what his father wanted, but there being no indication of this in his will.

The Court was convinced that the older brother was not doing the right thing, and that the three (3) year delay was unacceptable, and ordered that the older son be replaced as executor. The court also made orders in favour of the younger son to compensate for the misappropriations.

This case shows two crucial points regarding estate planning:

1. Choose your executor wisely, make sure they are of good character! Too often ineffective executors disrupt and delay what should otherwise be the simple administration of an estate; and
2. Where an executor is failing in their duties, there are avenues to remove them and have the estate administered efficiently.