The Facts
Probate document states home address of each executor
A woman died in July 2022, aged 95 years. She left behind three sons and a will which divided her estate equally between them. Two of the sons were named as executors of the estate.
In December 2022, the court granted probate of the woman’s will to the two executor brothers.
As is customary, the front sheet of the probate document named the two executors and stated the complete residential address of each of them.
Executor seeks suppression order for residential address
Lawyers for the first executor wrote to the Probate Registrar, asking that the probate be reissued and the address of that executor changed to the other executor’s address.
As a change of this nature requires a court order, the executors took the matter to the Supreme Court of NSW, requesting that the court make orders suppressing the address of the first executor indefinitely.
Executor claims intense abuse, intimidation and threats
The executor who wanted his address suppressed said that he feared for his safety because he had received “intense abuse, intimidation and threats” from his non-executor brother.
He also claimed he was forced to cease contact with his mother during her lifetime, because his brother’s abuse and intimidation was “on the verge of becoming physically violent”.
By the time of the court hearing, but before the expiry of the 12-month limitation period following the mother’s death, lawyers for the non-executor brother had written to the two executors to notify them that the brother intended to make a claim for a family provision order out of their mother’s estate.
It was up to the court to determine whether or not to grant the first executor’s request for a suppression order for his home address.
Expert commentary on the court's decision
Executor fails to obtain suppression order for home address
In the case of Application of Connelly; The Estate of Nancy Allwood Connelly [2023] NSWSC 467, the judge decided not to suppress the address of Maxwell Gordon Connelly, the first executor of the estate, despite the arguments he had advanced regarding his brother Richard Warren James Connelly.
The court was not swayed by Richard Connelly’s criminal history, pointing out not only that it dated back more than ten years, but also that “the judgment of another court… is not admissible to prove the existence of a fact in this proceeding.”
It was noted that under section 178 of the Evidence Act, there is a procedure for obtaining a certificate setting out particulars of a criminal conviction. Maxwell Connelly could have obtained such a certificate as evidence to the court of his brother’s criminal past, but he did not do so.
Duty of court to protect from violence, intimidation and stalking
The Supreme Court has a duty to protect everyone from violence, including intimidation and stalking. It is a fundamental aspect of maintaining a fair, just and secure legal system.
However, in this case the evidence provided by Maxwell Connelly of the abuse and intimidation he claimed to have suffered was unconvincingly vague. He provided only conclusionary statements that the abuse had occurred, without giving any examples of such abuse.
The judge suggested that if he had further evidence and concerns for his safety, he should seek an apprehended personal violence order, as this process is safe, speedy, inexpensive and simple.
Importance of safeguarding public interest in open justice
The court drew upon several earlier judgments in stating that suppression orders should only be made in exceptional circumstances, as they represent “a departure from the general and fundamental principle that justice is administered openly, in courts and by judgments that are accessible to the general public.”
Such orders must “do no more than is necessary to achieve the due administration of justice, based on the material before the court.”
The court pointed out that any departure from open justice required a compelling justification. Mere embarrassment, discomfort, reputational damage, or even financial loss were not sufficient to justify a departure from this principle.
It was noted that the outcome may have been different if Maxwell Connelly had provided more evidence of his brother’s behaviour.
Administration of deceased estates
When a person dies leaving an asset pool of $30,000 or more, a grant of probate, or letters of administration (if there is no will) must be obtained to allow for the transfer of such assets.
The role of an executor in a probate application is to attend to the signing of legal documentation and to distribute the estate in accordance with the deceased’s wishes.
Conflict between an executor and other beneficiaries can complicate the administration of a deceased estate.
It is important to speak to your lawyer in the first instance if you wish for any details to remain private in a legal proceeding.
If you are worried for your safety, you should go to the police.
Further reading on executors and estates
How do you choose an executor for your will? – the horror story edition
What exactly do executors of wills do?
When co-executors go to war, will there be anything left of the estate? Which case won?
Did the old man have the mental capacity to change his will? Which case won?
“She was his carer, not his de facto. That’s why she’s not in the will.” Which case won?
“I was in a secret relationship with the deceased and should inherit under his will.” Which case won?