When an Executor delays selling estate property, it can cause frustration, financial loss, and conflict among beneficiaries. Executors have a legal duty to administer an estate promptly and in the best interests of all beneficiaries. If an Executor is delaying the sale of a property without good reason, you may have legal grounds to act. In some cases, the Court can step in and remove or replace the executor.

The following real-life court cases from NSW highlight how the law addresses situations where an executor fails to perform their duties properly.

Case Study: McKerracher v McKerracher [2011] NSWSC 1288

This case concerns the estate of the late Daniel McKerracher who died in July 2010 leaving his two sons, the plaintiff and the defendant as executors and equal beneficiaries under his will. Probate was granted to both sons in January 2011. One of the sons, the plaintiff applied to the Court to have the other son, the defendant removed as executor, alleging that his conduct had stalled the administration of the estate. The plaintiff also sought orders for the defendant to vacate the deceased’s property at Werri Beach, account for estate assets, and deliver their father’s ashes to the plaintiff’s solicitor.

The evidence showed that, with the plaintiff’s consent, the defendant had moved into the deceased’s Werri Beach property to sort out the estate but failed to clean, clear, or prepare the house for sale, despite repeated promises. He also retained possession of the deceased’s ashes and ignored numerous letters from the estate’s solicitor seeking cooperation. As a result, the administration of the estate had come to a standstill.

In deciding the matter, the Court referred to the established principle that an executor may be removed if his actions or omissions endanger or prevent the proper administration of an estate. The key legal question was whether one of two executors could be removed without revoking the original grant of probate. The Court preferred the reasoning of Bryson J in Profilio v Profilio [1999] NSWSC 657, holding that it could directly remove one executor and allow the other to continue, rather than revoking the grant entirely.

Accordingly, the Court ordered that the defendant be removed as Executor, with the plaintiff continuing alone. He was ordered to:

  • File an affidavit detailing his handling of estate assets;
  • Deliver all relevant documents and the deceased’s ashes to the plaintiff’s solicitor;
  • Vacate the Werri Beach property; and
  • Pay the plaintiff’s legal costs from his share of the estate.

This decision confirms that the Court has the inherent power to remove one executor from a joint grant of probate where their conduct prevents the due and proper administration of an estate.

Case Study: Pajic v Lepan [2006] NSWSC 1123

In this case, the late Dorde Pajic’s friend, Drago Lepan, was appointed as Executor under the Will, and probate was granted to him. Mr Pajic’s son subsequently made an ex parte application (an application made by one party to a court without notifying the opposing party) seeking the removal of the Executor, revocation of the grant of probate, and an order requiring detailed accounts of the estate.

Under the Will, the estate was left to Mr Pajic’s two children, Zoran Pajic and Branka Seigal, in equal shares. A codicil, written in Croatian, appeared to confer a right to reside (or possibly a life interest) in the deceased’s Port Kembla property to Mr Pajic’s aunt. The precise nature of that interest was ultimately not in dispute, as the Executor, the beneficiaries, and the aunt reached an agreement that the aunt would receive $5,000.00 from the estate in exchange for relinquishing her right.

The property remained vacant for three years and was neither sold nor leased by the Executor, who had also failed to cooperate with the beneficiaries, both of whom had substantial interests in the estate.

The Court found that the Executor had impeded the proper administration of the estate and was guilty of inexcusable delay and inefficiency. Accordingly, the Court ordered that:

  • The grant of probate be revoked;
  • The Executor provide a full account of the estate to the Court;
  • The children be permitted to apply for letters of administration to act as administrators of the estate; and
  • The estate pay the children’s legal costs.

Takeaway: Executor’s Duties and Your Options

Executors have an obligation to:

  • Implement the Will in accordance with its terms.
  • Call in estate assets and administer the estate in a timely manner without unnecessary expense or waste of estate property – administering assets may include in-specie transfers of certain assets or investment of assets.
  • Exercise reasonable care, skill, and diligence in the performance of your duties as Executor, including keeping proper accounts and obtaining and taking professional advice if required.
  • Act impartially and in the best interests of all the beneficiaries, including exercising any discretion to consider and settle claims against the estate in good faith and solely on the beneficiaries’ behalf.

If an executor is unreasonably delaying the sale of an estate property, there is a good chance that they are failing to properly administer the estate in a timely manner or in the best interests of the estate, and it is possible that they may be breaching their fiduciary duties and obligations. It should be noted that the executor can be held personally liable for any failure to act prudently and reasonably in the administration of the estate.

If an executor is delaying the sale of a property, you may apply to the Court to remove an executor in the ACT and NSW.

The ACT Supreme Court has the power to discharge or remove executor pursuant to section 32(3) of the Administrative and Probate Act 1929 (ACT).

The NSW Supreme Court has ‘the inherent jurisdiction to remove a trustee or to revoke a grant of probate so as to remove an executor is exercised on similar principles. Where the evidence shows a want of proper capacity or intention to execute the duties of trustee or executor, the person may be removed from office so as to ensure faithful execution of the trust, or administration of the estate.’

What to Do if an Executor Is Delaying the Sale of Property

If you believe an executor is unreasonably delaying the sale of property, you can:

  • Request a full accounting of the estate;
  • Seek legal advice from an estate lawyer; and
  • Consider applying to the Court for removal of the executor if delays continue.

At MV Law, our experienced Wills and Estates Lawyers can assist you in understanding your rights, ensuring the estate is properly managed, and taking legal action where necessary to protect your interests. Contact us today for practical and confidential advice in NSW or the ACT.

MV Law Canberra

Ph: (02) 6279 4444

Email: info@mvlaw.com.au