Jurkiewicz v Jurkiewicz and the Public Trustee for the ACT [2013] ACTSC 89

The Supreme Court of the Australian Capital Territory was asked to appoint an independent solicitor to be the administrator of an estate instead of the deceased’s two sons who were appointed to be executors under her Will.

The deceased died in 2011, having prepared her Will in 2005. In her Will she appointed her two eldest sons to be her executors.

The two sons had a poor relationship with one another and were in dispute as to the assets that formed part of the deceased’s estate. As a result of these arguments, the two sons had not made an application for probate or begun to administer the estate.

Stefan, one of the sons, initiated the proceedings seeking to have himself and his brother both removed as the executors of the estate and an independent person appointed in their place.

The other son, Waldemar, objected to the proceedings and sought the removal of Stefan as an executor and requested that he administer the estate as the sole executor. Generally the Courts are reluctant to remove an executor who is named in a Will. However the Court does have the power to do so in cases where it is in the best interests of the administration of the estate. The Court must always ensure that the due and proper administration of the estate is paramount and takes into account the interests of the beneficiaries.1

The Court considered the effect that the sons hostile relationship would have on the administration of the estate and also considered the ability of the independent solicitor to administer the estate promptly, professionally and in the best interest of the beneficiaries.

The Court found that it was very unlikely that the two sons could work together to administer the estate properly and that consequently it would be in the best interests of the estate for an independent solicitor to be appointed in their substitution.

Comment - This case highlights the importance of selecting the right executors. Whilst the deceased may not have known when preparing her Will of the hostile relationship between her sons, this case could have been avoided if the deceased regularly reviewed her Will or appointed an independent executor to act with the sons.

Seeking professional advice and considering the practical effect of the appointment of an executor could have saved the estate considerable time and expense.