Check Koon Tan, an 85-year-old widower from Western Australia, passed away in December 2024 leaving a “straightforward” will.
He appointed his two adult children – Cephas and Pey – as co-executors, gifted property to Pey and forgave a debt owing to him by Cephas, with the residuary estate split equally.
Simple, right? It did not turn out that way.
Despite enjoying a generally amicable connection, the siblings’ relationship deteriorated early on in the estate administration and became irreparable.
Allegations regarding the other’s prior dealings with assets of the deceased were exchanged. Communication between the co-executors —even through intermediaries – became impossible.
Cephas applied to the Court that both executors be “passed over” and an independent administrator be appointed. His affidavit stated there was no realistic prospect that the siblings would be able to cooperate as co-executors and complete the administration.
Neither Cephas nor Pey had renounced their appointment but Pey did file a Notice to inform the court that he did not intend to participate in the proceedings and would abide whatever order the court would make other than as to costs.
The application came before Justice Amanda Forrester who noted the court has the power to pass over an executor and appoint an independent administrator, but that power is reserved for ‘exceptional’ or ‘special’ circumstances.
The judge noted what ordinarily constituted such circumstances: acts or omissions that jeopardise due administration; or an executor not being fit and proper to carry out their duties .
Questions as to an executor’s fitness might arise – she observed – from unwillingness to carry out their duties; lack of competence; their character; neglect or absence; ill-health or unsound mind.
Irreconcilable conflict between co-executors, was a further ground as it delayed finalising the estate and risked depletion of estate assets through disputation.
The ‘exceptional’ or ‘special’ circumstances that in this case enlivened the court’s power was exactly that: an irreconcilable conflict.
The judge found that they were unable to act jointly in their father’s estate. Appointing one of them to act solely was not the solution as it would invite further dispute.
Although the appointment of an independent administrator would not definitively remove the possibility of further disputes, an independent third party should be appointed – so ruled the court – to impartially assess any potential debts owed by the surviving children.
Tan -v- Tan [2025] WASC 491 Forrester J, 25 November 2025
