Appointing two executors might sound like a sensible way to share responsibility, indeed, it is something we often recommend, but what if those executors can’t agree, or worse, one refuses to act? The Supreme Court of New South Wales case Wise v Barry; The Estate of Robyn Margaret Wise [2018] NSWSC 1726 shows how easily an estate can grind to a halt when executors have competing interests. It also demonstrates the Court’s willingness to intervene to protect the integrity of an estate’s administration.
Background: A modest estate, a major dispute
Robyn Margaret Wise died in 2011 at the age of 60. She was survived by her de facto spouse and two adult sons. Her only significant asset was a coastal property valued at around $245,000.
Under her 1998 Will:
- Her de facto spouse and one son were appointed as co-executors.
- The property was to be divided: half to her de facto spouse and half to her two sons jointly.
On paper, this seemed fair. In practice, it created years of conflict. For six years after her death, the estate remained unfinished. The co-executors could not agree on selling or transferring the property. Meanwhile, the de facto spouse continued to live there – later remarrying and moving his new family in.
The property could not be sold without the agreement of both executors, so frustrated, the son applied to the Court to remove his stepfather as co-executor and to compel him to vacate the property so that it could be sold. The de facto spouse resisted, cross-claiming that he was entitled to keep the property under family provision laws because he had contributed to its maintenance and mortgage and had relied on promises that it would “always be his.”
The issues before the Court
Justice Lindsay had to decide several intertwined questions:
- Should the de facto spouse be removed as co-executor?
- Should his late family provision claim be allowed?
- Should he be ordered to vacate the property?
The Court’s decision
The Court removed the de facto spouse as co-executor and revoked his grant of probate. Justice Lindsay found that he had placed his own interests above his duties, obstructed the sale of the property, and failed to act cooperatively. The relationship between the executors had completely broken down, making joint administration impossible. The Court held that such circumstances justified removal to allow the estate to be properly administered.
The de facto spouse’s family provision application was dismissed. The Court noted that six years had elapsed since the deceased’s death – far outside the statutory timeframe – and he had not shown sufficient cause for delay. Further, he had already benefited by living rent-free in the property, and granting him further provision would unfairly disadvantage the deceased’s sons.
The Court ordered that the de facto spouse vacate the property within a set period so the estate could be finalised. A writ of possession was authorised to enforce the order if necessary.
Justice Lindsay observed that the dispute had become grossly disproportionate. Legal costs were approaching $130,000, consuming much of a modest estate worth around $245,000 – a sobering reminder of the financial toll of executor disputes.
Don’t let your estate be wasted on disputes and legal fees, Call us on 1300 654 590 or email us to put a comprehensive estate plan in place so you can move forward with confidence.
Key legal principles
The case illustrates several important principles:
- Courts can remove an executor under their inherent jurisdiction when the executor is unwilling or unable to discharge their duties.
- Executors must act impartially and avoid conflicts of interest.
- Family provision applications (in most circumstances) must be made within statutory time limits.
- Courts consider proportionality and reasonableness of costs.
Lessons for will-makers and executors
When preparing your Will or acting as an executor, it’s crucial to keep a few practical lessons in mind to prevent delays, disputes, and unnecessary cost.
- Choose your executors wisely: Appointing multiple executors can safeguard against inaction but also multiplies the risk of conflict.
- Consider an independent executor if needed.
- Anticipate conflicts: When a Will leaves a home or business to multiple beneficiaries, include directions for sale or occupation.
- Act promptly: Executors must finalise estates without undue delay; beneficiaries must contest wills within statutory timeframes.
- Avoid letting disputes consume the estate: Early advice and mediation can save time, money, and family relationships.
Final reflections
Wise v Barry is a cautionary tale about what can go wrong when co-executors become adversaries. The legal costs nearly halved the estate’s value. The deceased’s intentions were delayed for years. And a family relationship fractured beyond repair.
For Will-makers, the message is clear: choose executors not just for their loyalty, but for their ability to cooperate. For executors, the warning is even sharper: the role is a duty, not a prize and the Court will not hesitate to step in when those duties are neglected.
How we can help
Do you want to ensure that when it comes to the passing on your assets you have considered all the possible threats to your wishes? Call us on 1300 654 590 or email us and make an appointment. We can help you choose the right executor and find solutions to possible areas of conflict in your estate planning.
The information contained in this post is current at the date of editing – 7 November 2025.
