Litigation involving lawyers and deceased estates has rapidly increased over the last 15 years, to the point where even non-lawyers are aware that the massive depletion in the estate from legal expenses almost renders the fight untenable.
However, reconciling that somewhat philosophical view point with the prospect of a recalcitrant executor or unworthy beneficiary receiving more than they should, often creates an odd type of stand-off between parties.
The issues are always complex and the outcomes often unsatisfactory. That however, is the result of the law awkwardly trying to solve problems that are a mixture of emotion and good sense, with inherently rigid syllogistic decision making.
Earlier this year the Western Australian Supreme Court grappled with such a contest in circumstances that almost seel to defy logic. Carr -v- Larussa was a contest between the holder of letters of administration and an intending executor. The complication duplicates because the parties were also siblings and potential beneficiaries of the estate.
The contest arose because the deceased died seemingly intestate and the daughter was granted letters of administration of the estate. However, a few months later the deceased’s former solicitors discovered a facsimile copy of an unexecuted will, which appointed the daughter and son as joint executors. The deceased’s son applied for termination of the administration by his sister and sought for the will to be solemnised by the Court.
These proceedings were no the main dispute but an application by the daughter to determine her entitlement to defend the claim of the brother, because of the obvious conflict of interest. While not stated, the sub-text is that the daughter proposed to administer the $7 million estate differently than the way her brother proposed to administer it jointly with her.
Perhaps because of the questionable validity of the unsigned will; and certainly because of the need for proper administration, the Court found that it was proper for the daughter to defend the challenge to her administration. Not surprisingly, the costs of the proceedings were ordered to be paid out of the estate.
In Chick v Grosfeld the family accountant had been appointed as the executor of a substantial estate. There was a significant amount of in-fighting between the adult beneficiaries and the accountant had been called on to answer questions and issues raised by each of them.
The accountant, despite his appointment as executor, charged the estate on an hourly basis at his usual professional rate for each of these instances and amassed $85,000 worth of invoices in just under five months and promptly effected transfers from the estate’s bank account to his practice bank account to pay them.
The dispute centred on his ability to charge the estate including for what services and at what rate, because he was clearly in a position of conflict as executor when it came to determining his rate as an accountant for the estate.
An abundance of caution is always required in such circumstances and the NSW Supreme Court decided to remove the accountant and replace him with a Government Trustee Service to avoid any future contests, which themselves deplete the estate.
The constant struggle to balance between the entitlements of beneficiaries, the claims of executors and the importance of proper administration and execution of estates continues to prove difficult for the law to control. Over-administration and disputes about it can serve the administrative and prudential goals of the law, but all too often that is at the expense of the beneficiaries and can result in an outcome that was not contemplated by the deceased.