Chick v Grosfeld [2012] NSWSC 1166.

The New South Wales Supreme Court was asked to consider whether the actions of an executor should result in that executor being removed.  

The deceased appointed his accountant, whom he had known for a number of years to be the executor of his will. The will included a clause entitling the executor, as a professional, to charge the estate for work incurred by him at an hourly rate, in administering the estate.  

The executor paid himself over $180,000 from the estate as remuneration for his work in relation to the estate. In addition to paying himself the large commission it was alleged that the executor, amongst other things, failed to provide the beneficiaries with information, failed to comply with Court orders, repeatedly failed to pay liabilities of the estate, mixed funds from the estate with his own money and failed to administer the estate promptly.  

The children of the deceased made an application to the Court to revoke the grant of probate and a new executor to be appointed.  

The Court has an inherent jurisdiction to revoke a grant of probate where it is in the best interests of the beneficiaries and to ensure that the estate is administered properly.  

Considering the actions of the executor, the Court found that he had seriously breached his duty as an executor. In particular, transferring estate money into the executor’s own account was a serious breach of his obligations. The Court determined that the executor was not a “fit and proper person to continue to act” as his conduct had put the estate funds in jeopardy.  

Accordingly, the Court revoked the grant of probate and appointed the NSW Trustee and Guardian as executor. Responsibilities of professional executors Chick v Grosfeld [2012] NSWSC 1166.  

Comment – The role of an executor is extremely important. An executor has a fiduciary duty to act in the best interest of the beneficiaries at all times and must avoid any conflict between their personal interests and those of the estate. A willmaker must carefully consider the appointment of their executor. The circumstances of this case may have been avoided if the deceased had appointed two executors. Likewise, individuals who are appointed in their professional capacity must be fully aware of their obligations at all times. While the conduct of the executor may be considered extreme, it is not unheard of. It also demonstrates the importance of both willmakers and executors obtaining the appropriate advice.