A recent decision from the ACT Court of Appeal serves as a timely reminder of how high the legal bar is for removing an executor — and the strict limits of using earlier court proceedings to prevent an executor from raising new arguments in later litigation.
In Ross v Gordon [2026] ACTCA 1, the Court dismissed an appeal against a primary judge’s refusal to remove an executor, reaffirming the principles that govern executor removal and clarifying when the doctrines of issue estoppel and Anshun estoppel do — and do not — apply in estate proceedings.
Background: A Contested Estate and Dishonoured Cheques
The case arose from a complex and bitter estate dispute. Before her death, the deceased wrote three cheques totalling $1,200,500 to a trust she had established. The apparent purpose was to reduce the estate available to the appellant, who had a potential family provision claim. After the deceased passed away, those cheques were dishonoured.
In earlier proceedings, the courts determined that the dishonoured cheques did not create any liability for the estate — in other words, the estate was not obligated to pay the trust the $1.2 million. The question of family provision was remitted for further consideration, but the appellant ultimately abandoned that claim.
The appellant then turned to a new front: seeking to have the executor removed from office. The basis for the application was the executor’s alleged failure to pay the appellant and another beneficiary under the terms of the will — a failure the appellant argued demonstrated unfitness for the role.
What is Issue Estoppel and Did It Apply Here?
Issue estoppel prevents a party from re-litigating a question that was already decided in earlier proceedings between the same parties. The appellant argued that earlier judgments had effectively determined that the estate had capacity to pay the bequests — and that the executor was therefore estopped (prevented) from arguing otherwise.
The Court rejected this argument. The prior proceedings were focused on whether the dishonoured cheques created liabilities for the estate — not on whether the estate had sufficient assets to pay out the general bequest under the will. Because the estate’s capacity to pay the general bequest was never actually decided in those earlier cases, issue estoppel simply could not arise.
Key takeaway: Issue estoppel is limited to matters that were necessarily and actually decided in prior proceedings. It does not extend to related questions that were never squarely addressed.
What is Anshun Estoppel and Did It Apply Here?
Anshun estoppel — derived from the High Court decision in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 — prevents a party from raising in later proceedings a claim or defence that should reasonably have been raised in earlier proceedings between the same parties.
The appellant argued that the executor should have raised the estate’s financial incapacity to pay the general bequest during the earlier family provision proceedings, and that her failure to do so meant she could not raise it now.
Again, the Court disagreed. At the time of those earlier proceedings, there remained real uncertainty about the estate’s ultimate financial position — including the potential for ongoing legal costs to reduce the estate further and the possibility that specific bequests might fail. It was entirely reasonable, in those circumstances, for the executor not to have raised the incapacity argument at that stage.
Key takeaway: Anshun estoppel requires that it was unreasonable for a party not to have raised the issue in earlier proceedings. Where there is genuine uncertainty at the time — particularly in estate matters with fluctuating financial positions — courts will be slow to apply it.
The High Threshold for Removing an Executor
Perhaps the most practically significant aspect of the decision is the Court’s reaffirmation of the legal test for removing an executor. Citing established authority including Miller v Cameron, the Court confirmed that removal requires evidence of one or more of the following:
- Dishonesty
- Lack of capacity to perform the role
- Failure to act with reasonable fidelity to the executor’s duties
The appellant sought to rely on a general and ambiguous answer given by the executor during cross-examination as evidence of dishonesty. The Court found this was entirely insufficient. An unclear answer to a broad question does not, without more, establish unfitness for the office of executor.
Similarly, the executor’s decision not to raise the incapacity issue in earlier proceedings was found to be a reasonable and understandable litigation decision — not evidence of dishonesty or a want of fidelity to her duties.
Key takeaway: Removing an executor is a serious remedy that courts grant sparingly. Disagreement with an executor’s decisions, or frustration at delays in distribution, will not ordinarily meet the threshold. The applicant must establish concrete evidence of dishonesty, incapacity or a real failure of duty.
What Does This Mean for Beneficiaries and Executors?
This decision has important implications for anyone involved in estate administration:
For beneficiaries:
If you believe an executor is acting improperly, you need more than general dissatisfaction or a disagreement about strategy. Courts take seriously the stability and continuity that comes with maintaining an appointed executor, and applications to remove them require solid evidence of a real breach of duty. Ill-considered removal applications can also result in adverse cost orders, as occurred here.
For executors:
Where the financial position of the estate is uncertain — particularly in estates subject to ongoing litigation or where the outcome of specific bequests is unclear — it may be reasonable and defensible to defer raising certain arguments until matters become clearer. However, executors should always take legal advice before making such decisions, as the reasonableness of the deferral will be assessed in hindsight.
How CML Lawyers Can Help
Estate disputes — whether involving family provision claims, executor conduct, or contested distributions — are among the most emotionally and legally complex matters our clients face. At CML Lawyers, we advise beneficiaries, executors and administrators across NSW on all aspects of estate administration and contested estates.
If you have concerns about how an estate is being administered, or if you are an executor facing a challenge to your appointment, we invite you to contact our office for a confidential discussion.
Sydney: 3 Spring Street, Sydney NSW 2000
Cowra: 125 Kendal Street, Cowra NSW 2794
www.cmllawyers.com.au
This article is general information only and does not constitute legal advice. You should seek independent legal advice about your specific circumstances.