McKerracher v McKerracher [2011] NSWSC 1288

McKerracher v McKerracher [2011] NSWSC 1288

The due and proper administration of the estate is being prevented by the defendant's continuation as executor. The court has the power to remove one executor and have the other continue under the existing grant, rather than revoking the grant entirely.

Parties
Plaintiff: Derek Law McKerracher; Defendant: Donald John McKerracher
Jurisdiction
Australia
Judgment Date
17 October 2011
Procedural Posture
Application for Revocation of Probate and Removal of Executor / Final Judgment
Outcome
Defendant removed as executor; plaintiff continues as sole executor; additional orders for defendant to account for administration, relinquish documents and property, vacate premises, deliver ashes, and pay plaintiff's costs. Existing grant of probate is not revoked.
Legal Topics
Revocation of Probate, Removal of Executor, Due and Proper Administration of Estate
Wills, Probate and Administration Revocation of Probate Removal of Executor Due and Proper Administration of Estate

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Parties

Derek Law McKerracher

Plaintiff

Donald John McKerracher

Defendant

Procedural Posture

Application for Revocation of Probate and Removal of Executor / Final Judgment

Legal Issues

  1. 1 Whether the defendant should be removed as executor for failing to properly administer the estate
  2. 2 Whether the grant of probate should be revoked or one executor removed without revocation

Ratio Decidendi

The due and proper administration of the estate is being prevented by the defendant's continuation as executor. The court has the power to remove one executor and have the other continue under the existing grant, rather than revoking the grant entirely.

Court Disposition

Defendant removed as executor; plaintiff continues as sole executor; additional orders for defendant to account for administration, relinquish documents and property, vacate premises, deliver ashes, and pay plaintiff's costs. Existing grant of probate is not revoked.

Orders

  • The defendant is removed from the grant of probate with effect from 17 October 2011, without prejudice to the continuing executorship of the plaintiff.
  • Within 21 days the defendant must deliver to the Registry an affidavit describing administration of the estate and identifying unadministered estate assets under his control.