At ROC Legal, we recently achieved a significant victory in the Supreme Court of Queensland, securing a just outcome for our client in a complex estate dispute. Justice Treston’s decision reinforces fundamental principles of estate administration and the court’s power to intervene when executors fail to fulfill their duties.
Case Background
Our firm represented an executor of a deceased estate who found himself in the difficult position of working with a co-executor who had engaged in concerning conduct regarding estate assets. Both executors had applied to have the other removed from their position.
The estate, valued at approximately $1.5 million, included a valuable property which had been improperly transferred into the co-executor’s name personally. Under the terms of the will, this property formed part of the residuary estate and should have been distributed equally between three beneficiaries as tenants in common.
The Improper Transfer
In a concerning development, the co-executor had lodged a transmission by death of the property to themselves personally, despite having no proper legal basis to do so. While they attempted to justify this action through various arguments—including claims about work they had done on the property, alleged handwritten notes from the deceased, and assertions about previous property arrangements—the court found these justifications insufficient.
As Justice Treston noted in her judgment: “There was no proper basis upon which [the co-executor] could have become the sole registered proprietor of the property.” Her Honour further emphasised that this conduct showed a clear preference for personal interests over the interests of the estate and other beneficiaries.
Our Strategic Approach to Securing an Exceptional Costs Order
Recognising the serious nature of the co-executor’s misconduct, our team strategically sought an exceptional costs order—a remedy that goes beyond standard outcomes in estate litigation. While costs in estate matters are typically paid from the estate as a whole, we specifically requested that the court order the co-executor to personally indemnify the estate for our client’s costs, to be adjusted out of their share of the estate.
Justice Treston granted this remedy, directly acknowledging the merit of our submission. The court ordered that our client’s costs be paid on the indemnity basis out of the estate, and further that the co-executor indemnify the estate for these costs, with the amount to be adjusted out of their share of the estate.
This represents a significant departure from standard practice and demonstrates both our firm’s strategic approach to estate litigation and the court’s serious view of the co-executor’s misconduct. As Justice Treston stated: “On any view of this proceeding, [the co-executor] was not in a position to transfer the property to [themselves] personally. The cause of the application, I find, lies solely at the feet of [the co-executor].”
The court further ordered that the co-executor bear their own costs and not be entitled to be indemnified out of the estate—another significant victory that protects the interests of all beneficiaries.
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Legal Principles Applied
The judgment provides an excellent summary of the court’s power to remove executors, which arises under section 6 of the Succession Act or section 80 of the Trusts Act. Justice Treston noted:
- The court’s jurisdiction is “supervisory and protective”
- While a testator’s wishes are important, “the overriding objects of the court’s power remains the due and proper administration of the estate”
- The court must consider “whether the due and proper administration of the estate will be put in jeopardy” if particular executors remain in place
Court’s Decision
Justice Treston ordered:
- The removal of both executors
- Appointment of an independent administrator
- As specifically sought by our firm, that the co-executor who had improperly transferred property to themselves must indemnify the estate for our client’s costs
- That those costs be adjusted out of the co-executor’s share of the estate, rather than from the estate as a whole
- That the co-executor bear their own costs without indemnification from the estate
The appeal period for this decision has now passed, cementing this outcome as final.
How ROC Legal Can Help You
This case demonstrates our commitment to vigorously protecting our clients’ interests in any estate dispute. Whether you are an executor facing challenges with co-executors or a beneficiary concerned about estate administration, we have the expertise to help navigate these complex matters.
Our team understands the delicate balance between honouring a deceased’s wishes and ensuring proper estate administration. We’re not afraid to pursue litigation when necessary to protect our clients’ rights and secure just outcomes—including seeking exceptional remedies like personal indemnification from wrongdoing parties.
If you’re involved in an estate dispute or concerned about how an estate is being administered, contact ROC Legal today for a confidential consultation. Our expert Brisbane and Gold Coast Will Dispute Lawyers will fight for you with the same dedication and expertise that secured this favourable Supreme Court judgment.
Start Your Estate Planning Journey with Us
Connect with our experienced team to discuss your needs and find the right path forward.