Even beneficiaries with minor interests in an estate are entitled to apply to the court for the removal of an administrator to ensure the prompt and impartial administration of a deceased estate when this does not occur.

Stan Tream died in November 2018, having made his last will in February 2015 dividing his estate into shares.

shutterstock 1939402177He left 30% to meet the estate expenses including a funeral in Poland, 40% for his de facto spouse Blossom, 15% to Blossom’s daughter Helen and the remaining 15% to be shared among 5 others.

Stan’s home at Edmonson Park in Sydney’s south-west was eventually sold in May 2021 for $1.25m but his other residence in leafy Killara on the North Shore that Blossom had occupied since August 2019 – valued at $3.25m – remained unsold.

The two executors appointed in the will – Diana Kuitkowski and Mick Wywrota – who were also gifted a 3% share of the estate between them, renounced their roles and allowing Blossom to obtain a Grant of Letters of Administration in August 2020.

Tomasz Kuitkowski – entitled to a 2% share – applied to the NSW Supreme Court in February 2022 with the support of two other beneficiaries to have an independent administrator appointed in Blossom’s place.

Tomasz’ was concerned about the delay in finalising the relatively simple estate and that Blossom appeared to have decided to stay put in the Killara home where she was living rent-free.

He also demanded Blossom reimburse the estate for rent of that home totalling more than $189,000.

Despite the estate receiving the sale proceeds from the Edmonson Park property, Blossom had by the date of the application only made interim distributions to three of the beneficiaries (including Tomasz) of just under $50,000 each.

Justice Steven Robb accepted the contention that Blossom had no intention of leaving Killara and was endeavouring to appropriate it to herself as her share of the estate.

He also found in favour of Tomasz’ assertions that she had – without in any co-beneficiary consent – used estate funds to pay her own Telstra bills and for possibly unnecessary services provided by her daughter and her daughter’s friends.

Blossom – who was self-represented at the final hearing – failed to argue any grounds on which she ought to be permitted to remain in her role. Rather her contention was that the court had no jurisdiction to order her removal.

Justice Robb thought otherwise.

The 2.5 year delay in the administration was untenable in his view; as was her failure to make appropriate distributions promptly following the sale of the first property.

His Honour went on to say that Blossom’s continued occupation of the Killara property created a conflict with the other beneficiaries and was not consistent with her fiduciary obligations to the estate.

“The Court can not safely allow her administration to continue,” he observed.

He also noted that Blossom’s denial of the Court’s undoubted jurisdiction to consider her removal was – on its own – enough to warrant her removal.

Notwithstanding her manifest confusion and that she was “acting upon the basis of fantasy and irrationality,” her denial of the authority of the court from whom she had received the grant meant she “was no longer a fit and proper person to administer the estate”.

An independent administrator was ordered to be appointed so that the estate administration could be promptly completed.

The judge ordered that Tomasz’ considerable legal costs –  there had been 13 separate directions hearings –  be paid from the estate but reserved the right for him to seek to have Blossom made personally responsible for such costs at a later date.

Removal of an executor or estate administrator is likewise allowed for in Queensland pursuant to section 6 of the Succession Act 1981 (Qld).

Kuitkowski v Tream [2023] NSWSC 145 Robb J, 27 February 2023 Read case