EXECUTOR OF TWO ESTATES SEEKS TO BE DISCHARGED OF HIS DUTIES

Re Boardman; Edgar v Boardman [2021] VSC 314 (1 June 2021)

This is a case where the executor of the estate who is also executor by representation in the second estate seeks to be discharged as executor of both estates

Facts:

Peter John Boardman (‘Peter’) died on 12 June 2018.  Probate of Peter’s will dated 23 December 2017 was granted to his brother Anthony Ellis Boardman (‘Anthony’) on 20 September 2018.

Anthony died on 1 August 2019, before fully administering Peter’s estate.  Probate of Anthony’s will dated 10 May 2019 was granted to the plaintiff on 17 March 2020.

Upon the plaintiff obtaining the grant of probate of Anthony’s will, the plaintiff also became executor of Peter’s estate by operation of  S.17  of the  Administration and Probate Act 1958 (‘the Act’).

Pursuant to S.34(1) of the Act, the plaintiff seeks to be discharged as executor of Anthony’s and Peter’s estates due to his difficulties in finalizing both estates.

Casey Boardman is Anthony’s son and Peter’s nephew, and the residuary beneficiary of both estates.  As such, his interests are affected by the plaintiff’s application. Pursuant to orders made on 22 September 2020, Casey Boardman was joined as a defendant in the proceeding.

The plaintiff consents to the defendant being appointed as the administrator of Anthony’s estate and to the defendant then applying for administration de bonis non in order to complete the administration of Peter’s estate.

Issue:

whether the Court has jurisdiction to make an order pursuant to S.34(1) of the Act that the plaintiff be discharged as executor of Peter and Anthony’s estate.

Law:

S34(1): Notwithstanding anything contained in any Act where an executor or administrator to whom probate or administration has been granted whether before or after the commencement of this Act or where an administrator who has been appointed under this section or any corresponding previous enactment—(b) desires to be discharged from his office of executor or administrator.

The Court upon application in accordance with the Rules of Court may order the discharge or removal of such an executor or administrator and also if the Court thinks fit the appointment of some proper person or trustee company as administrator in place of the executor or administrator so discharged or removed upon such terms and conditions as the Court thinks fit;  and may make all necessary orders for vesting the estate in the new administrator and as to accounts and such order as to costs as the Court thinks fit.

Analysis:

On a narrow literal construction of  S.34(1) of the Act, the section would apply only to a directly appointed executor, being the executor ‘to whom probate has been granted’.  It would not apply to an executor by representation, as that person was not the executor to whom probate of the predeceasing testator’s will was granted. Accordingly, the Court would not have jurisdiction pursuant to S.34(1) to discharge the plaintiff as executor of Peter’s estate.

On a wider construction of  S.34(1)  of the Act, the section could also apply to an executor by representation, as that person was the executor to whom probate of the original executor’s will was granted. Accordingly, the Court may have jurisdiction pursuant to S.34(1) to discharge the plaintiff as executor of Peter’s estate.

Balancing the purpose and context of the statute against any potential adverse consequences, the wider construction subject to the limitation is to be preferred over the narrow construction. Accordingly, the Court has jurisdiction under s 34(1) to remove or discharge an executor by representation, except where discharge is only sought only in respect of the predeceasing testator’s estate.

Accordingly, the Court has jurisdiction to make an order pursuant to s 34(1) that the plaintiff be discharged as executor of Peter’s estate as, in this case, the plaintiff is also seeking to be discharged as executor of Anthony’s estate. However, it does not necessarily follow that the Court is required to make such an order in the circumstances of this application.

Conclusion:

The Court has jurisdiction to make an order pursuant to s 34(1) of the Act that the plaintiff be discharged as executor of Peter’s and Anthony’s estate.

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