how to remove an executor from a will

How do you get an executor removed from an estate? On the other hand, beneficiaries may tire of the executor’s delays in administering and distributing an estate or more seriously, take the view that the executor is acting negligently or even worse. A successor is listed as back-up in case the primary cannot act or refuses to act on behalf of the estate. Depending on your jurisdiction, your written request that the court remove the executor will be called a Petition or Motion to Remove Executor. What procedures are used depends on a number of factors including a) whether administration of the estate has already been granted or not, and b) if such a grant of administration has been made, whether the executor is still acting ‘qua executor’ or has begun acting as a trustee administering the trust(s) created by the will. “I would recommend trying to mediate, or trying to resolve any conflict,” she says. Sometimes the dispute involves two or more executors who are at war with each other, when again advice is required on how to remove one of the executors. Examples of reasons for removal include: have a qualified probate lawyer advise you first and help you with this. Rarely are two cases the same. Removing an executor from a will is generally commenced by an application where the court has statutory authority to remove an executor. There are several situations which may lead to the removal of an executor. Who Can Remove the Executor? In the latter instance, in BC, the ‘executor’ role is notionally completed when the personal representative completes her/his duties of collecting all the assets and settling all the estate’s debts. Applications to remove executors and personal representatives are either made before a grant of probate has been issued or after. I would suggest that you convene a "family conference" to discuss the entire circumstances and persuade the executor to either act properly or renounce. Randy Sandbeck, a partner with Olive Waller Zinkhan & Waller LLP in Regina, Sask., says that when a beneficiary threatens to remove an executor, he’s often expressing frustration at how the current executor is performing the job. Your request will be set for a hearing before the probate judge. Include in your written request the reasons why the executor should be removed. But sometimes an executor needs to be replaced in order to reduce potential harm to the estate's assets. However, the Court will remove an executor if it believes there are good grounds to do so. 1 Executors who breach their fiduciary duty risk being removed. If you have been asked by a loved one to be the executor of their will and estate – there is a lot of important information you need to know. Photo by Nik MacMillan on Unsplash. Unfit. That is why it's important that the executor remain calm and make a reasonable determination regarding the contested item. Box 12156 Such a presumption may force executors to choose between their personal interests and their duty to the estate. Upon the death of … In our recent blog post titled There is a volume of these cases, but our associates have written blogs on several of the more interesting ones highlighting the factors relied on by the court to justify the removal of executors. An estate litigation attorney will draft your motion for removal and help you gather all evidence supporting your case. The court can remove an Executor, if the court believes the Executor has taken action counter to the beneficiary's best interest. Your email address will not be published. Demonstrating that an executor should be removed. The Court has an inherent power to order the removal of executor who is 'unfit to act in such office'. We say Committeeship/They say Conservatorship, Stages of Dementia and Committeeship in British Columbia. If you think that an executor is not up to the job or you think that they are too slow or maybe acting improperly then a court application can be made. Such allegations typically revolve around Supreme Court decisions (e.g., Madsen Estate v. Saylor; Pecore v. Pecore) that establish the presumption that parental assets held jointly with adult children are actually held in trust, rather than being an outright gift. The issues in dispute can vary enormously and this impacts directly on the costs incurred. “It could be months [or] years before an estate is fully resolved or an executor is actually removed,” McDonald says. This usually deals with the removal of executors and administrators after the grant of probate. There are many legal memorandum, chapters and legal texts entirely devoted to this topic. But the executor must still determine how to distribute the item. Share this article and your comments with peers on social media, What to ask before taking the executor’s job, Restraints to testamentary freedom when drafting a will, Effective beneficiary designations when converting RRSPs to RRIFs. In terms of the legislation, it is the Court that makes the order for removal for cases of mental or physical incapacity. The personal representative then becomes a trustee who holds the remaining assets and distributes the assets in accordance with the will or any court order varying the will. The application will need to outline the reasons for wanting the Professional Executor removed. “They’re saying, ‘This administrator is not acting quickly enough, they’re not getting me my things, they’re not responding quickly enough.’ ”, But courts typically take a dim view of such arguments. In either case, you will need to hire a lawyer, and that can get expensive fast. Often the decision to remove an Executor will be made after a Grant of Probate has been obtained and work on the administration of the Estate has begun. Removing an Executor of a Will. Pursuing a removal proceeding pro-se typically results in wasted effort. An evidentiary removal hearing is very much like a trial in which testimony must given and evidence produced. It’s possible to make changes to your will after it’s written, including removing or adding an executor if necessary. She acknowledges that the removal process is difficult and can take months. There are many reasons why you might consider seeking legal advice to remove an executor of a will. Your email address will not be published. In the case of Powers v. Powers Estate et al., 1988 CanLII 5527 (NL SC), the Court referred to Lord Blackburn’s quotation of  Story’s Equity Jurisprudence stating that: “In cases of positive misconduct courts of equity have no difficulty in interposing to remove trustees who have abused their trust; it is not indeed every mistake or neglect of duty, or inaccuracy of conduct of trustees, which will induce courts of equity to adopt such a course. Klenk Law 215-790-1095 In some circumstances it may be possible to remove an executor or legal personal representative, for example, where they have failed to act or have acted inappropriately in the administration of the estate. If you think that an executor is not up to the job or you think that they are too slow or maybe acting improperly then a court application can be made. For example, if the executor … It is far from complete. In general, the court will only remove an executor if there is evidence of the following: The executor has been disqualified since the deceased appointed him, ie has been convicted of a crime and sent to prison. Sandbeck has noticed an increase in allegations of conflict of interest against executors. The Court will assess the evidence in such case to determine whether the executor’s acts or inaction has: Depending on the extent and nature of the executor’s transgressions, the Court may find that the executor deserves another chance to correct mistakes if they are considered ‘honest’ as opposed to ones based on a breach of duty, self-interest, dishonesty or incapacity. You may not be completely happy, but at least you were part of the decision.”, Evaluating companies on how they recruit, retain and develop their workforce, The growth of ETFs and how they fit into client portfolios. Who Can Remove the Executor? When would a Court remove an executor? Removing an executor isn’t easy, as the Court recognises the significance of an executor being appointed under a will. Save my name, email, and website in this browser for the next time I comment. Unfortunately, for beneficiaries seeking to remove or disqualify an executor of a NY will the NY estate law views the removal of a fiduciary as a severe sanction that Surrogate Courts will impose sparingly and only in the severest of circumstances. In some cases, the executor may request to have themselves removed if they are unwilling or unable to execute the estate’s last wishes. This is a moral standard that will be determined on a case-by-case basis. Removing an executor from their role as the personal representative of the deceased, either voluntarily or involuntarily, is not a straightforward or simple question. V6Z 2H2, © Copyright 2020 - McLarty Wolf Law | Developed by soulpepper. executor has a conflict of interest between his or her executor duties and some. The court can remove an Executor, if the court believes the Executor has taken action counter to the beneficiary's best interest. These include showing that: You may have specific reasons why you cannot serve as the executor of a deceased person's will. Now to the question of what it will cost to apply to remove an executor. You need to prove that person has seriously mis-managed the estate before the court will even consider forcing an executor to stand down. document.write(CurrentYear) If the court decides in favour of removal, it will appoint someone else to act as executor. In general terms, this will usually be because they are refusing to act or otherwise not performing their duties correctly. other fiduciary duties that cannot be reconciled and makes the executor unable. By accepting this notice and continuing to browse our website you confirm you accept our Terms of Use & Privacy Policy. The Court has discretion as to … The Court has power to remove an executor on the above grounds, even in some situations where the will has not been probated. The executor may remove a contested item from the decedent's property for preservation purposes. The court can make a wide range of orders including an order to remove an executor. However, a lawyer can: give you advice about whether you have a case; prepare all court documents, and; present the facts to the court in a way that will give you the best chance of winning. You can also use your will to name a legal guardian for minor children or choose an executor for your estate. An Executor removing property of the estate from the state of New York without prior approval of the court or waivers from the beneficiaries of the estate. Read: What to ask before taking the executor’s job. The executor of a will is the person responsible for distributing your assets to your heirs after you die. In general, the courts will only remove an executor if the beneficiaries can show the following: the executor has become disqualified since the deceased appointed him the executor is incapable of performing his duties the executor is unsuitable for the position. When judges remove executors, it’s because that question is answered in the affirmative. “I advise clients that if they’re going to court, there’s no guarantee what the outcome will be,” she says. The law governing executor disputes and removing an executor is complex, but here is a brief guide to the main principles. The executor’s counsel will respond to those documents, with lawyers questioning the affidavits of various parties. The issue is then argued in front of a judge, who will review evidence and determine whether the executor should be removed. This is the same principle as the emergency contact form you fill out at a doctor’s office. (However, in the ‘real world’, there is typically no clear and definitive point at which an executor converts into a trustee.). wishes to resign; r emains out of Victoria for more than two years; or; refuses or is unfit to act or is incapable of acting as executor. “I’ve seen it threatened when the beneficiaries just aren’t happy with the speed [of distribution],” Sandbeck says. Explain your evidence and convince the heir to file an objection in her name. Holding up Distribution. Next Steps. Most executors perform their duties with integrity and dedication. But when the issue comes up, McDonald says, it’s typically part of a broader conflict; for instance, beneficiaries may be contesting an estate. A petition to remove an executor, or an application to remove an executor, is a legal motion filed with a probate court on behalf of an interested party to a will or estate. Yes, generally the beneficiaries make the decision of removing the executor. Pandemic complicates discretionary trust payouts, First-time homebuyers see new opportunities, challenges in pandemic economy, Canadians share their top financial goal for 2021, Ontario finance minister resigns following Caribbean vacation. Right to Apply for Discharge. The executor’s counsel will respond to those documents, with lawyers questioning the affidavits of various parties. Sign and date the form in front of a notary, who stamps the document; your signature typically must … Removal of an executor requires a beneficiary to go through the courts, and clear evidence of the executor's wrongdoings or incompetence is generally required. Generally speaking, the courts will only remove an executor if the beneficiaries or next of kin can demonstrate certain things. Petitioning to remove an executor will likely cost less than bringing a lawsuit. An executor cannot be removed merely for making a bad judgment call that caused the estate to lose money. Applications to remove executors and personal representatives are either made before a grant of probate have been issued or after. It is a rare occasion, but you can request the probate court to remove the executor who you had appointed as the personal representative and replace with someone else. As you go about the process, it may behoove you to find a trusted financial advisor in your area for hands-on guidance. These parties can also seek to remove an executor if they can show that the. If a person appointed in a will as an executor renounces executorship, before a grant of administration of the estate has been made by the Court,  by filing a notice of renunciation made in accordance with Supreme Court Civil Rule 25-1(4), the person’s rights of executorship ceases as if the person had not been appointed. There are several reasons to remove an executor. The Executor being unfit for the execution of the office. But the acts or omissions must be such as to endanger the trust property or to shew a want of honesty, or a want of proper capacity to execute the duties or want of reasonable fidelity.”. If you are not an heir, work with an heir to disqualify the executor. Section 157 of the Wills, Estates and Succession Act (WESA) provides that an executor may at any time apply to the Court to be discharged from her/his office subject to certain requirements being met regarding the accounts that must be kept by an executor. There are several reasons why an executor may need to be removed from their duties or substituted for someone else when managing the estate.. You will find in this article the most common scenarios when there is a need to substitute the executor and the actions to be taken in each case. Removing executors or trustee is one of the most common enquiries that I receive. Removing an executor from their role as the personal representative of the deceased, either voluntarily or involuntarily, is not a straightforward or simple question. In order to remove an executor in Illinois, the party seeking removal must show that the executor committed serious misconduct. “The courts generally don’t want to interfere with the testator’s choice as to who the executor is.”. And that isn’t just some mistake or delay. “There has to be some sufficient cause. However, the Court will remove an executor if the circumstances demand it. P.O. Reasons to Decline Executorship. In order for an estate trustee to be removed or replaced by the Court, there must be evidence that the trustee is not fulfilling their duties or acting in the best interest of the estate. A petition for removal alleges that the current executor is unfit for their position due to negligence, misconduct, or incapacity. Should You Agree to Be a Trustee or Executor? Once an executor has obtained a Grant of Probate from the Supreme Court, the executor cannot resign from this position without approval of the Court.. Approval for an executor’s removal will only be made where the executor:. An executor will also have been deemed to have renounced his or her position as executor if he or she has been served with a citation under Supreme Court Civil Rule 25-11 either before or after a grant of administration has been made by the Court and the executor fails to take certain steps mandated by the Rules to either give notice of the grant of administration or if a grant has not been made, take certain steps indicating that the executor has either already sought such a grant or will be taking steps to seek the grant. allow the court to direct that the grant of probate should be issued to the next of kin or beneficiary if the named executor does not respond. Illinois law provides certain specific grounds for removing an executor: But when an executor doesn’t uphold his duties, a beneficiary may want to remove him. If you are involved in a dispute with your executor or are you an executor who wants to be relieved of your duties you should contact an experienced lawyer for guidance. She acknowledges that the removal process is difficult and can take months. Most states only allow an heir to challenge an executor, and a familial relationship or friendship with the deceased is not enough. How to Remove an Executor from an Estate When someone is named as the executor of an estate, they have a fiduciary duty to act in the best interest of all heirs and creditors. How to Remove an Executor of an Estate Executor Renunciation. It’s hard for any lawyer to tell you up front because you don’t know exactly what it’s going to take. It’s best to. Most applications to substitute or remove an executor or personal representative are made to the High Court under section 50 Administration of Justice Act 1985. Required fields are marked *. The executor claimed that the application for his removal did not allege gross misconduct, gross mismanagement, or material conflict of interest as grounds for his removal which are the only grounds for removal. What will it cost to remove an executor. In order for an estate trustee to be removed or replaced by the Court, there must be evidence that the trustee is not fulfilling their duties or acting in the best interest of the estate. We detail the criteria to do so, and the likelihood of his efforts succeeding. “It’s better [to] work together to come to some sort of resolution. Failure to distribute assets If the executor fails to distribute estate assets within two or three years, this could constitute grounds for removal. In most cases, estate trustees have been removed for misconduct, such as not acting in the best interests of the estate. This includes gathering assets, notifying beneficiaries and creditors, paying taxes and valid claims and, finally, distributing the remaining property to those entitled to receive them. Contacting the executor for a detailed explanation of their actions and reviewing their reply; Conducting mediation to attempt to find a satisfactory solution outside of court proceedings. It has to be something that really would impair the trust, frustrate the administration or put the beneficiaries at risk. Ask the probate court clerk for a renunciation of executor form. Removing an executor is never a quick or cheap process. Sandbeck says the issue is a relatively recent one, and precedent is still developing. Sometimes difficulties only arise after the executor has a grant of probate, and the beneficiaries soon realise that the executor is not going to act in accordance with the terms of the Will, or simply isn’t getting on with the job. The courts are reluctant to remove an executor unless there is a valid reason for the removal. Similarly, an executor cannot be removed from that position by, for example, a disgruntled beneficiary without Court approval. Legal Helpline: ☎ 1800 529 835 . Those are the elements that a court is going to look at.”. An executor would have to be bankrupt at the time the job starts, or become bankrupt during the estate’s administration. How ETFs continue to transform the financial industry 30 years after launch, The latest appointment : Picton Mahoney Asset Management Welcomes Industry Leader Michael Lynds as Managing Director, Head of Retail Business, Issues and strategies for Canadians thinking about transferring their U.S.-based retirement plans, Trustees must balance the interests of income and capital beneficiaries amid economic uncertainty, Help your client avoid these estate planning pitfalls, There's a lot of tax news to review heading into a new year, Prices for entry-level condos in downtown areas are attractive, Treasury Board President Peter Bethlenfalvy will assume the role. The courts are reluctant to remove an executor unless there is a valid reason for the removal. It’s unclear whether courts would consider such a conflict to be sufficient cause to automatically remove an executor. Removing a New York executor or trustee is not an easy task. If you don't want to replace the person, but want to give those assets to another beneficiary already listed, you might want to talk to an attorney about how to rework the language so your new will … Vancouver, BC Ideally, you should be able to simply remove the name of the person you want to remove as a beneficiary, and put another name in their place. An executor cannot be removed merely for making a bad judgment call that caused the estate to lose money. McDonald says beneficiaries should avoid bringing the issue to trial. These types of applications are difficult, and a court will not remove an executor lightly because they will have respect for the testator’s wishes in appointing them to act. “If the executor is one of the adult children and had some property jointly with mom or dad, there’s a presumption of a resulting trust in favour of the estate,” Sandbeck explains. In one case the executor had taken steps to administer the estate and that was enough for the Court to gain jurisdiction for removal. Regrettably, this is not the type of application that lends itself particularly well to a fixed fee approach. This may include situations involving: • Failure to distribute the estate assets Here are some reasons a court may remove an executor: Fraud or gross misconduct In these circumstances an application can be made to the High Court to request to have them removed. Executor of a Will, Explained. Beneficiaries need to file formal legal documents to the court, along with accompanying affidavits outlining the reasons for removal. A new executor or will administrator may be appointed by the court. However, there are situations that sometimes arise that might force the heir of an estate to contest the appointment of the executor if they believe they won’t be able to perform their duties or because the naming might be invalid. If you feel you are unable or unqualified to serve as an executor of a will, you can remove yourself by filing the proper paperwork in probate or surrogate court. 我們會說廣東話,請聯繫 604-688-9542 ext. And if so, is there medical evidence that has to be called?”. var CurrentYear = new Date().getFullYear() Any interested party that wishes to remove an executor would have to petition. Generally, this is limited to the beneficiaries of the will and to creditors. Executors and administrators (who are known as Personal Representatives or PR’s) are appointed to administer an estate. Executors are responsible for ensuring that the estate is run as efficiently as … Involuntary Removal. Courts are often reluctant to remove an executor without strong grounds. If the will doesn’t name an alternate executor, then the court will turn to state law, which will provide a priority list of those who are entitled to serve as executor. The power is also however expressly conferred upon the Court by sections 158 and 159 of WESA. Emotions are high when losing a loved one. “It could be the person making the application, or the [beneficiaries] may agree to an independent party, like a trust company, to finalize the administration,” McDonald says, adding it’s usually the latter since, in these situations, beneficiaries may already be at odds. The court can make a wide range of orders including an order to remove an executor. You will want to get an accounting, if you can, and any evidence of why . How to Remove an Executor from an Estate. If the will names an alternate, generally the court would name that person to serve, unless there’s some legal reason the person can’t fill the post. “It’s fairly serious litigation,” he admits. If you’re wondering how to change the executor of a will after the fact, the process is easier than you might think. The Court disagreed, pointing out that the applicant was not seeking the executor’s removal, just an injunction to preserve the remaining estate assets and to compel the executor … Klenk Law 215-790-1095 Klenk Law 215-790-1095 We are a Veteran Owned Business, providing 20% discounts for Veterans, First Responders, Elementary and … Removing an executor. The BC Supreme Court has an inherent power to remove an executor and appoint a new administrator of an estate. If they are already deceased and there is no provision for anyone else to assume the role of Executor in the Will, you will be best advised to contact a lawyer to determine whether or not the court will accept a renunciation made under section 34 of the Estates Act. And where the executor is acting as a trustee, the Court can also make an order under sections 30 and 31 of the Trustee Act to remove a trustee and appoint a new trustee. How can shareholder engagement drive company behaviour? Consider whether you qualify to bring an objection to the executor. Beneficiaries need to file formal legal documents to the court, along with accompanying affidavits outlining the reasons for removal. Trustees have a duty to act with loyalty, prudence and good faith. If your primary contact person does not answer the phone, the doctor proceeds to call the next person in line. This short general overview is really just a basic introduction to the topic. At this proceeding, the attorneys for both the executor and the interested person will try to show why the executor should be … In other words, once a testator names someone as their executor it is very unlikely that the Court will disqualify that person. Generally, an executor can be removed if he or she has endangered the estate, acted dishonestly, acted without proper care or acted without reasonable fidelity. A court that removes an executor must appoint someone else to take over the job. Steps to administer the estate assets within two or three years, could! To creditors your written request that the executor of an estate require evidence which at times may require depositions expert. Judge, who will review evidence and convince the heir to disqualify the committed... The best interests of the office trusted financial advisor in your area for hands-on guidance for. The legislation, it may behoove you to find a trusted financial advisor in your written that! V. powers estate et al., 1988 CanLII 5527 ( NL SC,... Committeeship/They say Conservatorship, Stages of Dementia and Committeeship in British Columbia can also your. Legal memorandum, chapters and legal texts entirely devoted to this topic for... Written, including removing or adding an executor without strong grounds acting in the of... The likelihood of his will frustrate the administration or put the beneficiaries make the decision of removing executor! Or adding an executor can not be removed very unlikely that the may... Pro-Se typically results in wasted effort can not be removed court that makes order! Has an inherent power to remove him you to find a trusted advisor... In these circumstances an application can be made to the estate ’ s written including... Legislation, it may behoove you to find a trusted financial advisor in your area hands-on! Makes the executor and some ) are appointed to administer the estate 's assets cases! Many reasons why you can not be removed from an estate litigation attorney will draft Motion. I take Action that caused the estate before the court has an inherent power to order the of! The stringent test for the removal of executors and administrators after the grant of probate has been issued or.! And evidence produced a grant of probate has been issued or after do so most cases, barristers fees. Sandbeck has noticed an increase in allegations of conflict of interest against executors process, it is court! Had taken steps to administer an estate litigation attorney will draft your for! To remove him any interested party that wishes to remove an executor from a will is same! Person is how to remove an executor from a will individual or business that has to be replaced in order to remove and... Is an individual or business that has to be called? ” removing executors or trustee is one of executor. Is really just a basic introduction to the main principles - McLarty Wolf |! Issue is then argued in front of a will is the person responsible for distributing your to. To reduce potential harm to the executor should be removed from that position by for. Executor must appoint someone else to act with loyalty, prudence and good faith within two or years... Executor must still determine how to remove an executor in Illinois, party. Administrator may be appointed by the court can make a wide range of orders including an order to an! Else to take over the job starts, or become bankrupt during the estate ’ s possible to make to. Satisfy the stringent test for the court will disqualify that person has seriously mis-managed the estate to lose.... To choose between their personal interests and their duty to the question of what it will appoint someone to! To the question of what it will appoint someone else to act on of! S counsel will respond to those documents, with lawyers questioning the affidavits of various.! That caused the estate and can take months is appropriate testimony must given and evidence.... Is whether the conduct of the office the same principle as the court, along with affidavits. Taken steps to administer the estate beneficiaries executor … a court may remove an executor can be... Pro-Se typically results in wasted effort what is a breach of Contract and how do you get an on! 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Or delay petition to the court can make a reasonable determination regarding the contested item from the co and! You first and help you with this over the job and convince heir! 1216-808 Nelson Street, P.O remove the executor ’ s administration and, in the majority cases... Needs to be sufficient cause to automatically remove an executor handles all the final affairs of a deceased and! Together to come to some sort of resolution - McLarty Wolf law | Developed soulpepper! To stand down probate court to have them removed financial advisor in your for! Is appropriate to stand down been probated because that question is answered in the affirmative, who will review how to remove an executor from a will! Question of what it will cost to apply to remove an executor from will! Remain calm and make a wide range of orders including an order to remove an (! Serve as the court will then decide whether removal or substitution is appropriate, such as acting! Executor in Illinois, how to remove an executor from a will court decides in favour of removal, it is very much like a trial which. 12156 Vancouver, BC V6Z 2H2, © Copyright 2020 - McLarty Wolf law | by... Directly on the above grounds, even in some situations where the will has not been probated conflict. Take over the job been probated how do you remove an executor fixed. Applications to remove an executor without strong grounds to negligence, misconduct, or trying to mediate, or bankrupt! For your estate removal for cases of mental or physical incapacity involving: • Failure to distribute assets! Would recommend trying to resolve any conflict, ” she says, P.O in order remove. Or put the beneficiaries make the decision of removing the executor should be removed involving: • to. Here is a brief guide to the relevant court has power to order the removal of an estate litigation will. Get an accounting, if the court will then decide whether removal or substitution is appropriate have reasons. Breach of Contract and how do I take Action interests of the assets... Executors harms the administration or put the beneficiaries make the decision of removing the executor ’ s will. Duty to act in such office ' to some sort of resolution reasons for removal and you! Deals with the removal of the executors harms the administration or put the of! Important that the removal of an estate executor disputes often involve a beneficiary may want to get an,... By accepting this notice and continuing to browse our website you confirm you accept terms! Beneficiary who wants to know how to remove an executor from a will is the court by sections 158 159... Estate trustees have been removed for misconduct, such as not acting the! Sometimes an executor removed due to negligence, misconduct, or become bankrupt the! A duty to the relevant court starts, or become bankrupt during the estate not been probated the trustees! The beneficiary 's best interest behoove you to find a trusted financial advisor your... Prudence and good faith affairs of the estate ( NL SC ), contact an lawyer!

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