SISTER SEEKS FOR BROTHER TO BE REMOVED AS THE EXECUTOR OF THEIR MOTHER’S ESTATE

O'SULLIVAN -v- O'SULLIVAN EXECUTOR OF THE ESTATE OF JM O'SULLIVAN [2021] WASC 168 (28 May 2021)

The plaintiff sought an order that the first defendant be removed as executor of the estate of Jean Mary O'Sullivan (the deceased).

Facts:

The deceased was the plaintiff's and the defendant's mother. The deceased died on 8 April 2015. She left a will dated 19 November 2011. The defendant applied for a grant of probate on 17 December 2015 and obtained a grant on 21 January 2016.  It was not until September of 2019 the plaintiff obtained a copy of the deceased's will and the grant of probate.  On 3 June 2020, the plaintiff applied for leave to commence an action under the Family Provision Act out of time.  On 12 November 2020, leave was granted.

At no stage has the defendant in his capacity as executor of the deceased's estate engaged with the plaintiff nor the court. He did not appear or take any part in the proceedings brought by the plaintiff  for an extension of time under the  Family Provision Act. He has not appeared or taken any part in these proceedings. 

Issue: Should the defendant be removed as executor?

Analysis:

The defendant's failure to discharge his duties as executor is readily apparent. His behaviour is nothing short of reprehensible. The personal legal representative of a deceased who is charged with administering an estate according to law has an obligation to respond to proceedings brought in relation to the estate. It is a fundamental aspect of an executor's duties. Without more, such failure would in most circumstances justify the removal of the named executor as administrator of the estate. The position is worse here. The defendant has threatened the plaintiff with violence if she brought any claim against the estate.  He has also threatened to destroy property forming part of the estate.

Conclusion: In all the circumstances, the evidence adequately demonstrates removal of the defendant as executor of the deceased's estate was warranted.

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