By Peter Baltins -
Snapshot
- An examination of the key authorities demonstrates that the Court places great weight on a testator’s appointment of an executor and trustee and will not interfere with it lightly.
- It is difficult to pass over the testator’s choice of executor. A mere conflict between duty and interest will not suffice.
- The Court will ultimately seek to ensure the due and proper administration of the estate and protect the interests of the beneficiaries.
A topic of considerable debate and some confusion amongst practitioners is how to advise their clients when they are named an executor in a will and they may have some claim on the estate or some other issue which may cause their personal interests to conflict with their duty as executor. Should the executor take up the appointment to administer the estate or should they renounce? Should beneficiaries take action to pass them over or have them removed? How can you protect your executor or trustee client?
The genesis of the confusion in this area partly arises from the fact that politicians cannot vote if there is a conflict and solicitors are governed by ethical rules dealing with conflicts of interest. Some solicitors seek to apply these rules to executors, but this is not appropriate. Secondly, there have been mixed messages from the courts over a long period of time. An early example is that a representative is bound by the rule in equity ‘that no one who has a duty to perform shall place himself in a situation to have his interests conflicting with that duty.’ (Broughton v Broughton (1855) De GM & G 160 (at [164]). On the other hand, Hordern v Hordern [1910] AC 465 (discussed below) is strong authority to the contrary. The authorities bear closer examination.
