Have you made the right decision?

If you are unsure, read our summary of one of the latest decisions regarding feuding executors.

In the matter of Callaway v Callaway; The Estate of Aileen Margaret Callaway [2019] NSWSC 1275 three brothers, appointed executors of their late mother’s will couldn’t see eye to eye on matters pertaining to their mother’s estate. 

For years following her death, bitter and accusatory correspondence ensued between the brother’s lawyers. With the passage of years and following the death of one of the brothers, one of the surviving brothers made an application to the Court that he be granted probate and that his surviving brother be passed over as executor. In turn, that surviving brother made an application to the Court that both he and his surviving brother be passed over as executors and that an independent administrator be appointed.

In this matter, the Judge made it clear that decisions passing over executors are not done lightly and that the Court must always have high regard of a testator’s choice of a person as executor or co-executor because the deceased’s persons choice shows that the deceased person reposed trust in that person and considers them to be suitable and capable of performing the duties required of an executor.    

However, during the course of the hearing and as each brother gave evidence, the level of distrust, hate and patronising view that each of the brother’s had of one another was obvious to the Court. In his Judgment, the Judge stated:   

“Neither in the words of their evidence or in their gestures did the Court receive any basis to infer that these pair were on a road to improving their relationship.”

 Following on, and in the context of a grant being made to one brother and not the other, the Judge stated: 

“In the history of the correspondence in this case, such a grant is likely to produce a round of subterranean warfare against the appointed executor and is inherently incompatible with the orderly future administration of the estate.”

 The Court subsequently found that the appointment of either of the brothers would jeopardise the due and proper administration of their mothers’ estate according to her will, subsequently making orders for the passing over both brothers as executors and appointing an independent administrator. 

It is important to make sure that this doesn’t happen to you. To ensure that your wishes are honoured after your death, have the conversation with your family. If you have any questions about the above content, don’t hesitate to contact Christine Vrahas at Owen Hodge Lawyers at ohl@owenhodge.com.au