Dore v Cairns

In the case of Dore v Cairns, the applicants, Dore and an alternate executor, sought the removal of the co-executors, Cairns and another, due to the inability of the executors to cooperate and administer the estate of the deceased. The case was heard in the Supreme Court of Queensland. The applicants argued that seven years had passed since the death of the deceased, yet the estate had not been fully administered. The co-executors had broken off communication and were unable to work together. The applicants sought orders for both co-executors to be removed and for an independent administrator to be appointed in their place.

The court considered the inherent jurisdiction to revoke a grant of probate and the duties of an executor. The court found that it was appropriate to remove the co-executors due to their inability to administer the estate properly. However, the court decided to adjourn the matter to allow for further evidence in relation to the appointment of a new executor, specifically an alternative executor named in the will. There was no evidence or submissions addressing whether the alternative executor was available and willing to act.

The court ordered that if the respondent, Cairns, had the contact details for the alternative executor, he must provide them to the applicant's solicitor by a specified date. The applicant and the respondent were required to file and serve any further affidavit material and submissions in relation to the alternative executor and the costs of the application by specified dates. The application was listed for final hearing before Bowskill CJ on a specified date.

The court emphasised the importance of the due and proper administration of the estate in the interests of the parties beneficially entitled thereto on the part of the person entrusted with the office of executor. The court also referred to the judgment of Asprey JA in Bates v Messner, which emphasised that the essential basis of the exercise of the court's inherent jurisdiction to revoke a grant of probate is the due and proper administration of the estate. The court found that the co-executors had failed to administer the estate properly, and their removal was appropriate. However, the matter was adjourned for further evidence in relation to the appointment of a new executor.