Mullins-Trnovsky v Adams

In the Supreme Court of South Australia, Mullins-Trnovsky and others have brought an application against Adams and others, seeking to remove Michael Cowan Garrett from his role as an executor of Barbara Wanda Mullins' estate and replace him with a professional administrator. Mullins died on 20 February 2012 and a grant of probate in common form was issued on 13 June 2012 in favour of three executors, including Garrett. The plaintiffs allege that the executors have poorly administered the estate and potentially exposed it to significant tax liabilities under Division 7A of the Income Tax Assessment Act 1936 (Cth). Garrett has purportedly resigned from his role as executor and trustee of Mullins' will trust on 17 December 2013 and has taken no part in the administration of the estate since that time. The Court was required to determine whether it had the power to remove Garrett from his role as an executor of Mullins' estate and if so, what form the order should take. The Court found that an executor may apply to the Court for directions and orders relating to the administration of an estate under section 69 of the Administration and Probate Act 1919 (SA). The Court may revoke an inoperative grant and make a fresh grant if it turns out that the person appointed will not or cannot administer the estate. In this case, the Court found that issuing a fresh grant would be easier than amending the existing grant, which would involve the grant being manually amended. The Court concluded that it had the power to remove Garrett from his role as an executor and directed that a new grant of probate be issued to Peter Grant Adams and Trevor Paul Edmond.

The Court allowed the application to remove Michael Cowan Garrett as an executor and revoked the grant of probate. A new grant of probate was to be issued to Peter Grant Adams and Trevor Paul Edmond. The Court found that issuing a fresh grant would be easier than amending the existing grant, which would involve the grant being manually amended. Making a fresh grant obviates the need to make separate vesting orders for the property of the estate, and provides the remaining executors with a new set of documents which they can use to administer the estate without the difficulties that may arise when engaging with organisations which may not accept on its face a copy of a manually amended document.