Death and taxes are often cited as the only certainties. While these can be prepared for, sometimes, things change. Even where a sensibly drafted will is in place, circumstances that might not have been foreseen can arise. Sometimes at a time where the will-maker can no longer intervene.
Where the issue relates to the appointment of executors, it is useful to appreciate that the High Court retains a discretion to grant administration or probate to one or more of the executors (or even to some other person) where, by reason of “special circumstances the Court thinks it necessary or expedient to do so”. This enables an executor to be bypassed when probate is granted. The case In the Estate of Agnes Clifton Titchener provides a considered judgment regarding the factors the Court will consider when an application is made that the Court only grant probate to one of the two surviving executors. This provision effectively allowing the Court to second guess what the will-maker would have done given how events have played out.
The named executors were sisters and the deceased’s only children. However, prior to the deceased’s death, one daughter Mrs Baird since her deceased mother signed her will, the other surviving executor Mrs Fisher engaged in hostility towards the deceased (Mrs Titchener) and she continued to be hostile towards Mrs Baird and other beneficiaries, including one of her own children. Mrs Baird’s case being that Mrs Fisher’s conduct is so egregious that she should not be entitled to be an executor of Mrs Titchener’s will.
In agreeing to grant the application and bypass Mrs Fisher as executor the Court noted that:
- there were concerns as to whether the estate would be able to be properly administered
- Mrs Fisher had made unfounded allegations against Mrs Baird in other courts
- Mrs Fisher had behaved in a hostile manner towards her sister, other solicitors (including one appointed to assist her), Ministry of Health staff, rest home staff where her mother had resided (from which she was ultimately trespassed) and medical professionals
- Mrs Fisher made numerous un-proven accusations
The Court was satisfied that the circumstances that un-folded post-dated Mrs Titchener’s will and that it was in the interests of all of the beneficiaries of her estate that the risk of further hostility be avoided.
The case is a useful reminder of the need to carefully consider who to appoint as an executor; and also the importance of identifying when issues might arise, prior to the grant of probate.
While any extra court application will come at some cost; the cost of a dysfunctional and poorly managed estate can be significantly greater.
- In the Estate of Agnes Clifton Titchener  NZHC 1347
- Administration Act 1969, s 6