We were instructed by a beneficiary of an estate who was one of two brothers and who was having difficulty getting his brother, who was the executor of the estate, to engage.
At the point of our involvement, the deceased had died over 18 months previously, and the executor had failed to take any meaningful action. No contact had been made with any of the beneficiaries, and the Grant of Probate had not been applied for. The estate was made up of the deceased’s residential property, household contents, a car and their savings account. Additionally, the executor was living in the deceased’s house and was using the deceased’s car.
The deceased had left a will which left his estate equally to his two sons, our client and his brother, the executor.
We initially wrote to the executor, setting out his duties and requesting that he progress the estate's administration. The executor initially failed to engage, so further letters had to be sent, threatening the commencement of court proceedings. When the executor did eventually respond, he contended that he had established a beneficial interest in the house, entitling him to own it outright by reason of financial contributions he had made over a period of approximately five years before the deceased’s death.
As an alternative argument, the executor contended that he was financially reliant upon the deceased and, as such, the will had not made reasonable financial provision for him and that, consequently, the house should be transferred to him outright. Despite arguing such entitlements in correspondence, the executor failed to take any steps to either advance those arguments by way of court proceedings or progress the estate administration.
Having exhausted correspondence, we issued proceedings seeking to substitute the executor for an independent administrator. Despite the executor's protestations, the proceedings were successful, resulting in the executor's removal and the court's appointment of an independent professional administrator. The administrator issued court proceedings seeking possession of the deceased’s property. The former executor (who occupied the property) sought to counterclaim that they had a beneficial entitlement to the property or that the court should make further financial provision so that the property could be transferred to them.
Our client was made a party to the proceedings by reason of his beneficial interest within the estate. The independent administrator adopted a neutral position as to the claim for further financial provision, leaving our client to contest his brother’s claim to the house.
After ten months of court process, consideration of evidence as to the former executor’s alleged financial contribution to the house and alleged financial need, the court dismissed both claims and made an order for possession, requiring the former executor to vacate the property. The court also made an order that the former executor pay the costs of our client, the level of which became the subject of assessment by the court.
After the former executor had vacated the house, it was sold, and the proceeds were distributed to both of the beneficiaries, although the former executor’s inheritance was substantially less due to the deduction made for the costs payable to our client under the order of the court.
