Neil Ronald Telfer and Executor of the Estate of the late Lyall Tefler v Carolyn Telfer (No 2) [2013] NSWSC 823

The brother of the deceased attempted to admit a codicil knowing that the signature on the codicil was not the signature of the deceased.

The codicil was found to be invalid, leaving the estate to be distributed in accordance with the deceased’s Will. However the Will named the same brother and the sister of the deceased as executors of the estate. The question the Supreme Court of New South Wales faced was whether the brother’s previous conduct prevented him acting as an executor of the estate.

The Court found that the brother’s misconduct in attempting to prove a document that he knew was not a testamentary document of the deceased, resulted in him not being a “proper person to be entrusted with the estate’s administration.” The Court held that due to the brother’s dishonest behaviour he should be passed over as acting as an executor of the Will.

As a result of the deliberate misconduct by the brother, he caused the estate unnecessary delay and expense. The Court found that rather than the legal costs being paid from the proceeds of the estate, the brother should pay the costs personally.

Comment: In previous editions of Wills Watch we have considered other cases in which the Court has removed an executor for misconduct or not acting in the best interests of the estate. In this case, not only was the brother prevented from acting as an executor of the estate but he was liable to personally pay for all legal expenses incurred in the proceedings.

This again highlights the important role, responsibilities and duties of being an executor. If you are appointed to be an executor of an estate it is important to seek advice to ensure that you are complying with your obligations and acting in the best interests of the beneficiaries of the estate at all times. As seen in this case, failure to comply with obligations and duties may result in an executor being personally liable.