McKay v Queensland Ballet Company: The executor’s discretion

When people make a will, they often think the most difficult conversation will be about who should receive their assets and how. An equally critical decision is the often overlooked one: who should be appointed as executor.

An executor is the person responsible for administering an estate. At its simplest, that means collecting assets, paying debts and distributing whatever remains in accordance with the terms of the will. In practice, the role can be a difficult and time consuming one. An executor may need to make judgment calls, resolve competing interests, seek advice, communicate with disappointed beneficiaries and, in some cases, ask the court for guidance before acting.

Additionally, in estates involving related entities, an executor may also be required to:

The decision in McKay v Queensland Ballet Company

In McKay v Queensland Ballet Company [2026] QSC 137, HopgoodGanim Lawyers acted for the executor of the estate, Dr Judith McKay. The will of the deceased, Mr Glenn Cooke, empowered Dr McKay, a long-time friend of Mr Cooke, to make a decision for him after his death. It left the residue of the estate, almost $2 million, to:

Mr Cooke did not name a particular organisation in his Will. Instead, he identified the type of organisation he wanted to benefit and entrusted Dr McKay to decide which recipient best answered that description. The discretion was not incidental or administrative - it was the mechanism Mr Cooke chose to give effect to his charitable intention.

Dr McKay, as executor, had the power to decide the most appropriate recipient for the residuary estate, having regard to the criteria described by the deceased in his Will. Dr McKay shortlisted a panel of dance companies as potential recipients and sought proposals from each about how the companies would manage the charitable bequest should they receive it. Through that process, Dr McKay formed a view that Queensland Ballet Company was the preferred recipient.

Prior to making a final decision, the executor decided to approach the Court for directions that she was justified in administering the trust to pay the benefit in favour of the Queensland Ballet Company. This application was the subject of dispute. Australasian Dance Collective, one of the shortlisted dance companies, contended that Queensland Ballet Company could not fit the description of “a significant Queensland contemporary dance company”.

The Court confirmed that there are limited circumstances in which it will interfere with a decision made by an executor where they are granted a discretion. The Court’s job in these matters is not to substitute its own views for the executor’s, simply because a party does not agree with the manner in which that discretion has been exercised.

The discretion of an executor can only be interfered with where the executor has:

• acted in bad faith;
• acted for an improper purpose;
• takes into account irrelevant considerations, or fails to consider relevant considerations; and
• otherwise does not give real and genuine consideration to the exercise of the power.

In this case, there was no suggestion that Dr McKay had acted in bad faith or in any way improperly. In those circumstances, the only consideration for the Court was whether, based on objective facts, Queensland Ballet Company could fall within the class of possible recipients. That is, on objective facts, could Queensland Ballet Company be described as “a significant Queensland contemporary dance company”? If it could, then the choice between the potential recipients was one for the executor to make and the Court had no cause to intervene.

The Court held that it was not possible to conclude, on any objective basis, that Queensland Ballet Company was not “a significant Queensland contemporary dance company”. On that basis, in the absence of bad faith or failure to exercise real and genuine consideration, the Court was not entitled to disrupt Dr McKay’s decision.

Executors sometimes have to exercise discretion

The case is an important reminder for will-makers, that while your will can prescribe how your assets are to be distributed and to whom, there will still be areas in which your appointed executor is required to exercise their discretion. Areas where an executor may need to exercise their discretion include:

• when a beneficiary should receive their entitlement;
• whether to sell or retain an asset;
• whether to seek professional advice (and who to seek advice from) or guidance from the Court;
• whether assets should be distributed in specie (that is, as they are) or sold, and what value should be attributed to the assets for that purpose; and
• whether to defend or settle litigation;
• whether, or how, to invest proceeds of estate assets while waiting for the administration of the estate to be completed.

In McKay, the Court confirmed that where a will gives an executor or trustee a discretion, the Court will usually respect the decision if it is made honestly, for a proper purpose, within the terms of the will, and after real and genuine consideration of relevant information. The Court is not there to substitute its own preference simply because someone else may have made a different choice.

For that reason, the identity of the executor becomes critical. The person appointed must be trusted to make, if required. decisions that affect family members, business interests, charitable gifts and long-term trusts. If they are not organised, independent and willing to seek advice, the estate may be exposed to avoidable delay, cost and conflict. Additionally, the beneficiaries may have little recourse if they simply disagree with a decision made by an executor.

Superannuation and trusts can add another layer

Superannuation is another area where the executor’s role may be more complicated than expected. Superannuation does not automatically form part of a person’s estate in every case. Depending on the fund rules and any death benefit nomination, the trustee of the superannuation fund may decide who receives the death benefit.

Where the will-maker had a self-managed superannuation fund, the executor may need to step into a trustee or director role of that fund until such time as the member’s benefit is paid out. That can require decisions about death benefits, pensions, fund assets, compliance obligations and the interests of other fund members. The person appointed as executor may therefore be dealing not only with the estate, but also with a regulated superannuation structure.

Testamentary trusts can also require ongoing judgment. An executor may become trustee of a trust created by the will, or may appoint someone else to that role. Trustees may need to decide when to distribute income or capital, whether to invest conservatively or more actively, and how to manage the competing needs of beneficiaries over many years.

What to think about before appointing an executor

When considering who to appoint as executor, questions you should ask yourself include:

1. Will they be able to act calmly and independently if beneficiaries disagree?
2. Are they someone who is able to separate out and consider carefully their obligations as executor from any personal bias or personal interest?
3. Are you comfortable that, where they need to exercise their discretion, that you trust them to do so in a manner consistent with your intentions?
4. Do they have the time and ability to deal with paperwork, deadlines and professional advisers?
5. Are they likely to recognise when they need legal, accounting, tax or financial advice?
6. Could they manage or make decisions about private company shares, business interests, real property or valuable personal assets?
7. Could they step into a trustee or director role for a self-managed superannuation fund if required?

Where you are leaving matters involving significant discretion to your executors, it can also assist to have a memorandum of wishes or other supporting documents which can give guidance to your executors. A document of this type can provide support to the executor in their decision-making, without restricting in any way the exercise of the discretion that you have trusted them to make.

Implications for executors and will-makers

McKay v Queensland Ballet Company puts the executor’s role in the spotlight. It makes clear that the Court will not interfere with the exercise of a discretion by an executor except in limited circumstances. It also illustrates a more practical point: where a will-maker entrusts an executor to make a decision, the Court will usually respect that choice if the executor acts honestly, for a proper purpose, within the terms of the will, and with real and genuine consideration. It reiterates, then, the importance of choosing an executor that you trust to make careful and sometimes difficult decisions after your death.