However, it emerges from Porteous v Rinehart (1998) 19 WAR 495 that a distinction must be drawn between the duties of a trustee and the role of an executor or administrator who is concerned with getting in the assets of the deceased, paying his debts, distributing the assets and producing accounts. As matters progress, a person will commence to hold the property as trustee when his executorial duties in respect of that property have ended. Accordingly, a situation might arise in which the executor is simultaneously (albeit in respect of different assets of the estate) an executor and trustee under the Will.
In that case, the defendants were named as executors and trustees in a Will for which probate was granted. The plaintiff, a named beneficiary, made an application to remove them as executors and as trustees. The Hon Justice White held that the Court has an inherent jurisdiction to remove an executor and appoint a replacement by revocation of the grant of probate where it is necessary to ensure the due and proper administration of the estate.
His Honour said that the jurisdiction will be exercised cautiously, the dominant consideration being the welfare of the beneficiaries and the preservation of the trust estate. Where the ground for removal is alleged to be a conflict of interest and duty, the Court will only exercise its inherent jurisdiction to remove a trustee where it is satisfied the conflict has caused, or is likely to cause, mischief at a reasonably high level of seriousness.
Counsel for the plaintiff submitted that where there are otherwise equal competing claims for a grant of Letters of Administration, the Court has the right to select an administrator. Counsel contended that the selection ought to be based on the Court's assessment as to who is most likely to be able to ensure the due and proper administration of an estate. It followed, having regard to the principles mentioned earlier, and the circumstances of the present case, that the joint Letters of Administration should be revoked, because the intransigence of the defendant had rendered the administration of the estate unworkable. The plaintiff should be appointed the sole administrator upon the basis that such an appointment would best serve the welfare of the beneficiaries and the preservation of the estate.
Further, in making its determination, the Court should have regard to the parties' past conduct in the administration prior to the revocation and whether they have shown an understanding, or lack of understanding, of what is required to discharge the functions of administrator in a proper and accountable manner. The preference of the majority of the beneficiaries is also relevant to the choice where there are otherwise equal competing claims for a grant of Letters of Administration. In this case, the third beneficiary, Harold Youngson, favoured the sole appointment of the plaintiff.
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The defendant admitted under cross-examination that the parties cannot work together and administration of the estate is in a state of deadlock. It is clear to me that this impasse must be resolved so that matters can move forward. I am of the view that the welfare of the beneficiaries and proper preservation and administration of the estate will best be served if the current grant is revoked and the plaintiff is appointed sole administrator. I am prepared to make an order pursuant to s 29 of the Administration Act and related provisions accordingly.
