Your mum leaves you and your siblings her house in her Will but allows your brother to live there rent-free for a year first. The matter of Smith & Pallister [2026] NSWSC 1091 decided this month is a useful reminder on what happens when an executor sits on an estate instead of administering it.
The facts
Kathleen Pallister died in November 2023, leaving her home (worth around $3.5m and effectively the whole estate) to her five children equally. Her youngest son, Timothy, was appointed executor and given a 12-month right to live in the house rent-free before it was to be sold and the estate distributed.
Twenty months after that right of residence expired, Timothy still hadn’t sold, or even properly prepared to sell, the property. He was difficult to contact, dismissive when he did engage and at one point told a sibling he wasn’t selling because “𝘵𝘩𝘦 𝘞𝘪𝘭𝘭 𝘥𝘪𝘥𝘯’𝘵 𝘦𝘹𝘱𝘭𝘪𝘤𝘪𝘵𝘭𝘺 𝘴𝘢𝘺 𝘪𝘵 𝘩𝘢𝘥 𝘵𝘰 𝘣𝘦.” The other four siblings filed with the Court to have him removed as executor. He didn’t show up to the hearing and the Court proceeded in his absence after finding he’d had ample notice.
What the Court had to decide
Justice Bennett framed the case around three questions:
1. Is it in the interests of the due administration of the estate to revoke the grant of probate?
2. Is it in the interests of the due administration of the estate to make a fresh grant to the proposed replacement administrators?
3. Should the outgoing executor bear the costs of the proceedings personally?
The key principle
Importantly, the Court confirmed that removing an executor doesn’t require a finding of misconduct. The test is purely pragmatic: is the estate being administered properly and is it in the beneficiaries’ interests for that person to remain in the role? Where personal conflict or inaction has brought administration “𝘵𝘰 𝘴𝘰𝘮𝘦𝘵𝘩𝘪𝘯𝘨 𝘯𝘦𝘢𝘳 𝘱𝘢𝘳𝘢𝘭𝘺𝘴𝘪𝘴,” the Court can, and will, step in, even if the executor’s conduct falls short of provable wrongdoing.
Here, the near three-year delay, the sole asset sitting unsold and the breakdown in communication with the other beneficiaries were enough. The Grant of Probate was revoked, two of the siblings were appointed as replacement administrators and notably, the removed executor was ordered to pay the successful plaintiffs’ costs personally, rather than the estate footing the bill.