A court is often asked to decide who of several prospects be appointed to administer an estate or whether an independent administrator is preferable.
This might happen where all those named in a will as executors are unavailable for one reason or another.
In making its decision, the court must consider all relevant circumstances which are much the same to what needs to be addressed if it is asked to remove an executor appointed under a will.
Consider the case of Ermioni Kordos who died on 22 October 2021, aged 87 years. Her husband Evangelos Kordos had died in 2006. In her last Will made on 21 April 2016, Ermioni appointed her son Vasilios (known as Bill) as the executor and left her entire estate to Bill or in the event he predeceased her, to his son Evaan.
She had left nothing to her other son Zafiri (known as Geoff) for the following reason which appeared in her will:
I make no provision for my son GEOFFREY KORDOS as my said son Bill Kordos assisted me and my late husband when we were in financial difficulties and Bill Kordos continues to assist me financially and the disposition of my estate to him is in acknowledgement of the said financial assistance.
Geoff rejected that contention and notified that he intended to make a claim against the estate for provision be made for him.
The only “asset” in the estate was the potential right to sue Bill and his wife Eleanor for funds of $600,000 that Geoff says were improperly paid to Bill from Ermioni’s bank account, in circumstances where Ermioni lacked legal capacity.
Geoff contended the payment was in fact made by Bill to himself.
Because Bill had died 4 months before Ermioni, there was no named executor available to administer her estate.
Evaan had the right to be appointed as administrator, but declined as there were no assets of the estate to which he could have recourse.
Geoff therefore applied to the court to be appointed administrator “ad litem”, ie solely to take legal proceedings, so that he could sue Bill’s estate and Eleanor personally on behalf of Ermioni’s estate to recover the $600,000 Geoff argued was repayable to the estate.
After the recovery litigation was completed his intention was to no longer be administrator and that he be refunded legal costs incurred from the $600,000 recovered.
Justice Kate McMillan in the Victorian Supreme Court noted that a potential litigant against the estate seeking provision could be appointed in the right circumstances, but the court needed to be cautious due to the potential for conflict between the estate’s interests and Geoff’s personal interest in seeking provision.
An independent administrator was always preferable, and a potential litigant against the estate needed to establish that an independent administrator was not required.
Geoff was unable to do so.
Her honour held that although there may be valid grounds for the estate to investigate and seek recovery of the $600,000 paid to Bill, Geoff was not able to prove that he was sufficiently independent to be appointed as administrator.
It was clear to Justice McMillan that Geoff would pursue his brother’s estate and his brother’s wife Eleanor aggressively and would not consider whether such pursuit was in the best interests of the estate.
Her honour was also concerned about the potential for maladministration by Geoff if he was appointed and successfully recovered the funds for the estate. Geoff would be in control of those recovered funds and the potential for Geoff to apply those funds to himself was too great.