List member Caite Brewer appeared for the David McLennan in Re McLennan  QSC 124. The Applicant was one of two executors of the deceased estate of Lloyd John Wilson McLennan who died on 18 September 2016. David McLennan (a Respondent) was the other executor. They and the Peter McLennan (the other Respondent) were siblings, and the children of Mr McLennan.
Probate was granted to the executors on 6 June 2017. The Applicant sought orders revoking the grant of probate, appointing Mr Michael Klatt as administrator of the estate, and consequential orders. Peter McLennan supported the application while David McLennan opposed it.
Under the will all shares, and a property in Bonnner St was to pass to the Applicant, and all debts of Peter McLennan (amounting to nearly one million) were to be forgiven. The rest and residue was to fall to David McLennan.
Interests in the property “Eurombah East”, the plant and equipment and the stock depastured on that property were to pass to David McLennan. A condition of the bequest of the stock in the will was that he pay the Applicant $100,000.00 on accepting the bequest. However, the property of Eurombah had already passed to David McLennan due to an inter vivos transfer in 2013. Doubt had since been raised as to the validity of the transfer due to the deceased having been diagnosed with dementia five months afterwards.
Peter McLennan had lodged a family provision claim against the estate and the Applicant had joined it. The Applicant submitted that this claim had not been defended in compliance with the relevant Practice Direction, which may leave her open to liability. She also submitted that conflict prevented the executors from acting jointly as required, that taxation and other liabilities have not been met, that the inter vivos transfer needed investigation and that the discretion to remove executors arises without finding of fault, but when removal is in the interests of the expeditious administration of the estate.
In response, David McLennan submitted that the Court should not lightly remove a testator nominated by a deceased in a will and that misconduct of an executor should be proven before removal. Davis J considered that the discretion to remove the executor did not require there to be misconduct, although there often was.
Davis J referred to Re Greif; Kantor v Wilding  VSC 266 which held that the stage the administration had reached by the time the application for removal was made should be considered.
Davis J observed that at this stage there was clear conflict between the David McLennan’s duty as an executor and his own interests, in that he was the registered proprietor of Eurombah due to an inter vivos transfer that was now doubted and that if the transfer could be set aside the interest would be potentially available to meet the family provision claims. He noted though that a conflict was not determinative. The real question was how conflict had affected the administration.
There was evidence that information requested by the Applicant and Peter McLennan’s solicitors of David McLennan had not been forthcoming. Some delay in the administration could also be attributed to the Applicant and Peter McLennan in the way they progressed their family provision claims.
Davis J considered it was not necessary to determine whether the David McLennan was at fault, or was a fit and proper executor. Taking into account the respect due the deceased’s choice of executors, and the costs to be incurred, the due and proper administration of the will was best served by appointing an administrator.
Read judgment here: https://www.sclqld.org.au/caselaw/QSC/2018/124
Case note written by Krystal Harlen