Risks of being Executor of Will: Insights from Recent NSW Case 2023

The recent case of Prothonotary of the Supreme Court of NSW v Whit [2023] NSWSC 264 is a reminder to executors that the position of executor carries serious obligations and holds them to a high standard of conduct.  

Mr Ronald Brian Whit was committed to imprisonment for one year after being found to be in contempt of court orders relating to his role as executor of a deceased estate.

The Case

Mr Ronald Whit died on 9 June 2009 (the deceased). His Will appointed person of the same name Ronald Brian Whit as executor of his estate (Mr Whit). It was 8 years before Mr Whit applied for a grant of Probate, which he obtained in June 2017.  The application for Probate stated that the deceased estate held assets for net $175,000.  

Some 18 months after Mr Whit receive the grant of Probate and had failed in that time to administer the deceased’s estate, Ms Mottley commenced proceedings against him. She applied to have the grant of Probate revoked and for Mr Whit to file estate accounts with the Court.  

The Court listed the matter for hearing on 3 February 2020 and Mr Whit was notified of the hearing date by letter to his last known address, by email and SMS message. Mr Whit did not appear and the proceedings were adjourned to 14 February 2020. But again Mr Whit did not appear.  

On 17 August 2020, the proceedings where listed again and Justice Rein made Orders in Mr Whit’s absence. He ordered Mr Whit to:  

  1. file an affidavit setting out the assets of the estate and current location of the assets; the monies received by him and paid out by him as executor of the estate; his reasons for failing to distribute the estate; and his current address. 
  2. Pay all monies held by him as executor of the estate into Court.  
  3. Attend the hearing on 16 October 2020 (with or without legal representation).  
  4. For the duration of the proceedings, to notify Ms Mottley’s solicitor of any change to his residential address, email address or phone number.  

The Orders included a warning that the above Orders were “mandatory and failure to comply with any of them may have serious consequences for the Defendant including but not limited to a warrant being issued for his arrest to compel attendance at court, fines and imprisonment.”  

On 16 October the proceedings were listed for hearing and again Mr Whit did not appear. Justice Rein issued a bench warrant for Mr Whit’s arrest on 18 November 2020, to have Mr Whit detained and brought before the Court for the purposes of these proceedings.  

A letter was sent to Mr Whit in February 2021 advising him of the warrant and directing him to surrender himself to the Court. He did not comply.  

On 13 December 2021, a year after the warrant was issued, Mr Whit was arrested in a caravan park in Victoria. The arrest was performed by a number of Victorian Police Officers attached to the Fugitive Squad, accompanied by three NSW Sheriff’s officers. He was flown to Sydney in the custody of NSW Sheriff’s Officers.  

Mr Whit appeared before Justice Rein who noted that regardless of Ms Mottley’s application or claims, Mr Whit applied for and was appointed as executor of a deceased estate and, as such, had a duty to administer the estate within a reasonable time and to account to the Court for his actions as executor. He had been appointed by the Court to perform a particular function and had failed to do so.     

Mr Whit replied through his solicitor in essence that “the proceedings are now very real indeed to him”. He was released on bail and ordered to attend Court the next day.  

The next day, on 15 December 2021, Mr Whit was ordered to submit an affidavit to the Court and provide to the court:  

  1. All bank statements and documents for bank accounts held by Mr Whit for the period 1 June 2017 to date, and 
  2. All bank statements and documents for bank accounts held for the benefit of the estate for the period 1 June 2017 to date.  

By April 2022 Mr Whit had still not complied with Court Orders, despite several additional directions to do so.  

On 13 December 2022, Mr Whit pleaded guilty to charges of contempt in relation to: 

  1. He failed to submit an affidavit required by the Court,  
  2. He failed to produce the estate records to the Court,  
  3. He failed to provide an affidavit explaining non-compliance with the above Court orders.  

His penalty hearing was in March 2023. He filed an affidavit on that day stating that “I believe that the scope and contents of my deceased father’s estate are not an entirely simple matter, which could be addressed in a rapidly prepared document today at court.”  He proposed to return to Victoria and file the requested information by 23 March within 2 weeks.  

This affidavit was the first time Mr Whit stated that he was prepared to engage with the Court processes and his representative argued that this supported suspending his sentence to allow him the opportunity to comply.  

The Court noted that “It was common ground that, as a practical matter, it would be difficult, if not impossible, for Mr Whit to (comply with the Orders) from prison.”  

The Outcome

Justice Kunc held that the circumstances of this case and Mr Whit’s position as executor warranted the imposition of a custodial sentence. He noted that Mr Whit was not just an ordinary civil litigant before the Court; he was an executor being sued in that capacity.  An ordinary civil litigant owes a duty to assist the Court to participate in the process and comply with directions and Orders of the Court. But on top of that, an executor has common law and statutory obligations, including to the Court.  

“To be an executor is to hold an office… which, although it might have its origin in a private instrument being a will, is given legal effect by an order of the Court and thereby is not just of a private character. It is a fiduciary position: both morally and legally a position of trust. It is not just a private function, but is a publicly recognised office which also fulfills a public interest to ensure the due administration of estates according to law. Not just those immediately concerned with the proper administration of an estate, but the members of the community generally, are entitled to expect that executors will discharge that office properly. Similarly, the community looks to the Court to ensure that is done and that a failure to meet the required standards of conduct is, where appropriate, penalised and thereby deterred.”  

It was also well within Mr Whit’s powers to comply with the Court Orders. The estate was not large and the Orders were not difficult or complex. Had Mr Whit complied with his duty to keep proper records and accounts, he would have easily been able to provide those records and accounts to the Court when ordered to do so.  

Justice Kunc noted that Mr Whit had understood the seriousness of non-compliance with the Orders and that he was under arrest for failing to comply. He had been given numerous opportunities to do so and had failed to give adequate reasons for why he had not. This contributed to the seriousness of Mr Whit’s conduct and the need for appropriate punishment.  

The next issue for the Court was whether Mr Whit was guilty of civil contempt or criminal contempt.  

Consideration was given to the case of Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd (2015) 256 CLR 375; [2015] HCA 9 at [65] which stated: 

“…not all contempts are criminal. Failure to obey an injunction is not a criminal offence unless the failure to comply is defiant or contumacious. A proceeding for contempt is not a proceeding for criminal contempt if the proceeding appears clearly to be remedial or coercive in nature as opposed to punitive.” 

In this case, Justice Kunc was satisfied beyond reasonable doubt that Mr Whit’s conduct in failing to comply with the Orders was defiant or contumacious, and therefore constituted a criminal contempt.   

The Sentence

In determining the appropriate sentence for Mr Whit, the Court needed to weigh the need to compel Mr Whit to comply with Court Orders against the need to punish him for failure to comply. It was recognised that if sentenced to imprisonment, it would be impossible for Mr Whit to comply with the Court Orders.   

However, Justice Kunc found that issues of denunciation, deterrence and punishment were of equal significance, in part because Mr Whit was an executor and had higher obligations as such.  Noting that Mr Whit’s position as executor “places a particular emphasis upon the need for a sentence that would be sufficient to deter others from similar conduct and remind executors generally of the importance of their obligations as such both inside and outside the courtroom.”  

Mr Whit was sentenced to one year in prison.  

The Court noted that this sentence acts as a reminder to all executors of their obligations to the estate and to the Court, and the serious consequences they may incur if they fail to perform their duties to the high standard expected of executors.  

The role of executor comes with serious obligations and responsibilities. If you have been appointed as executor of a deceased estate, you may need legal help to ensure that you are fully advised of your obligations and to assist you to carry out the directions contained in the Will and legally administer the estate. 

How we can help

  • assessing the Will.
  • identifying estate assets and non-estate assets.
  • liaising with asset holders to prepare an Inventory of Property.
  • explaining the legal processes relating to Probate and estate administration.
  • preparing and filing the application for a grant of Probate.
  • contacting beneficiaries and keeping beneficiaries up-to-date on the Probate application process.
  • facilitating the distribution of the estate and preparing estate account records.
  • representing the estate if there is a challenge or claim to the estate.

Book in an obligation-free consultation with our Specialist Will & Estates Solicitor. 

Specialist Will & Estates Lawyers for Sydney and Newcastle

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The information in this article is not legal advice and is intended to provide commentary and general information only. It should not be relied upon or used as a definitive or complete statement of the relevant law. You should obtain formal legal advice specific to your particular circumstance. Liability limited by a scheme approved under Professional Standards Legislation.