Suspect the Executor isn’t properly administering the Estate? What can you do to remove them?
Picking an executor for your will is an important decision – after all, you are entrusting that person to follow the instructions set out in your will, and trusting that they will act in the best interests of your estate, and the beneficiaries named in your will. Unfortunately, some executors don’t always uphold those traits, and it can become necessary to ask for their removal.
There are effectively 3 ways an executor can be removed:
- The executor voluntarily renounces their position (“Renunciation”);
- The executor doesn’t renounce their position, but also fails to administer the estate, and refuse to do so following a court issued citation (“Citation”); or
- The executor is removed by order of the Supreme Court (“Court Removal”).
An executor appointed by a will is under no obligation to take up the role. If they do not want to do so, then they ought to renounce their role as executor by signing a document (called a “renunciation”). The role of executor then passes to the next alternative/s named in the will, or may require appointment of an administrator to deal with the estate.
Sometimes an executor simply will refuse to do anything about a will or estate – and won’t even sign a renunciation so that the next executor named in the will can deal with the estate. In these circumstances, the executor can be ‘cited’, which is a formal court document that requires them to fulfil their duties as executor promptly – and if they fail to do so, then the court will issue an order for their removal, so enabling the next executor named in the will to be able to take up the role.
Lastly, the Supreme Court retains the ability to remove an executor. The court will not do so lightly, as they do not want to disturb the willmaker’s wishes – the overriding assumption being that the willmaker thought the named executor was appropriate to act as executor. However, the court may exercise its ability to remove an executor where there is proven misconduct by an executor, where the executor is in a position of conflict (e.g. the executor is suing the estate), or where it is in the overriding interests of justice and the beneficiaries’ interests that the executor be removed. There’s a wide variety of considerations that go into any decision to remove an executor, but if circumstances merit, then the court will order removal of an executor. The role of executor may pass to an alternative executor named in the will, but often it will instead be made to an independent solicitor to finalise the estate (usually because there has been a complete breakdown in the relationship between the parties with interests in the estate).
No matter the situation, we are able to assist and advise clients concerning their rights and interests in estate matters, including whether it may be possible to obtain an order that an executor be removed. If you are concerned about a potential dispute, it is often best to get in front of the issue and be proactive. If this occurs, please contact us to discuss how we can assist you.
Article written by Thomas Ashton – Senior Associate
This publication is for information only and is not legal advice. You should obtain advice that is specific to your circumstances and not rely on this publication as legal advice. If there are any issues you would like us to advise you on arising from this publication, please let us know.
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