Not all about the money: Why executor appointments are just as important

When people make a Will, they’re usually predominately concerned with who they will distribute their assets to after they’ve passed.  An exceptionally important part of making a Will is appointing a person as an Executor who will then administer your estate in accordance with the directions you’ve left in your Will.

Unsurprisingly, the Courts end up attempting to resolve disputes as to who was ‘rightfully’ appointed as an executor.

Such is the case in the recent decision of In the Estate of Cox (Deceased) [2017] SASC 41.  Mr Cox passed away in June 2016 and had left a pre-printed Will form attached to a Will Kit.  When it came to appointing his executor, his Will said:

I appoint Kathleen Anne Cox of  in the State/Territory of South Australia and I appoint Stephen Richard Cox of …. in the State Territory of W.A. to be the Executor(s) of my Will and Trustee(s) of my estate, but if he/she/they does not/do not outlive me or is/are unwilling to act or incapable of acting, then I appoint Sean Donnald Cox of …. in the State/Territory of Queensland. [omissions excepted]

Unfortunately, Mr Cox’s wife did not survive him.  The Court was then tasked to determine whether Stephen was to act as Executor jointly with his brother, Sean, OR or Stephen solely and then Sean as a backup.

Given there were multiple alternatives to how to interpret Mr Cox’s intentions, the Court had to consider the construction of the clause.

The Court noted specifically that the step-by-step guide in the Will Kit did not draw the will maker’s attention to the need to select or strike out the alternatives in the clause and that it caused difficulty when the instruction within the form said “Decide who you want to be your executor/executrix.  This can be one or more persons (the maximum is four)”. Notwithstanding you can appoint up to four, the form really only provided enough room for two and one substitute.

The Court cited Perrin v Morgan [1943] AC 399 with respect to the principles of construction and considered the intentions of the testator.  The Court also followed the rule as stated in Allgood v Blake (1873) LR 8 Exch 160 and took into account the whole of Mr Cox’s Will to determine the words in their natural meaning.

Clause 5 was of assistance in determining Mr Cox’s intentions where he had left his estate to his wife, and had provided an alternative backup position if his wife had predeceased him stating a direction that “my executors to divide the residue of my estate equally between our sons Stephen Richard Cox and Sean Donald Cox and our daughter Fiona Kathleen Lois Kerr” [emphasis added].  This direction had permitted the Court to be satisfied that Mr Cox had considered the possibility of his wife predeceasing him and clearly had intended to appoint more than one executor to administer his estate in the event that his wife did not survive him.

The Court determined that Mr Cox appointed his sons Stephen and Sean to act jointly as executor for his Will.   In coming to that conclusion, the Court said:

The testator did not simply copy the suggested wording verbatim, rather he applied the concept of the precedent and amended it to reflect his particular circumstances. [para 23]

Having regard to the entirety of the Will, I have arrived at the conclusion that the testator intended for Sean and Stephen to be jointly entitled to apply for a grant of probate in the event that Kathleen died during his lifetime.  I should point out that Sean’s attitude to this matter is not known. [para 24]

You can read the case here.



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