How do you remove an incompetent Executor?

Beneficiaries of wills and estates, where probate already has been ordered, are sometimes faced with a conundrum of how to deal with an Executor who is not doing the job properly. In such circumstances it may be possible for the beneficiaries (as plaintiffs) to legally seek the removal of the Executor (as defendant) by motion/summons if the circumstances warrant it.

Any application to the Court to remove an executor will need to consider the “welfare of the beneficiaries and of the estate”. The Court appears to have a large amount of discretion to consider a number of factors, but at the heart of it all is the question of whether the welfare of the beneficiaries is opposed to person/s holding the position as Executor. What that means in practice is not always easily answered since a conflict of interest in and of itself may or may not be sufficient. Other factors that may lead to the removal of the Executor include:

•  a failure to account,
•  unwarranted delays in the administration of the estate,
•  a lack of mental capacity,
•  not communicating with the beneficiaries; and
•  a conflict of interest that taints the satisfactory administration of the estate.

In order to make out an application for the removal of the executor, sufficient evidence is needed and this is often where the focus of the application should be. While it may sound simple, clear and cogent evidence is needed to demonstrate the relevant conflict of interest or failure to account (as an example) before the Court will remove the executor.

An aspect that is sometimes not fully considered or understood is how the issue of costs should be dealt with and whether the defendant’s costs can be paid out of the estate.

In many cases the costs of the Defendant will be paid out of the estate but where the executor has acted improperly and caused prolonged litigation, it may be grounds for another order

In many cases the costs of the Defendant will be paid out of the estate but where the executor has acted improperly and caused prolonged litigation, it may be grounds for another order. Arguably, where the executor behaves this reprehensibly, there should be no entitlement for reimbursement from the estate or for the costs of obtaining the grant of probate to begin with.

It is possible for the Court to order that the Executor be discharged and that someone else be appointed and that the defendant pay the costs personally. The Courts do have a large amount of discretion in these cases but naturally, each case will be decided by its own facts and anyone in this situation should obtain legal advice about their particular situation and chances of success before acting.

For further information or advice, please contact Streeterlaw on 02 8197 0105 or email advice@streeterlaw.com.au.

Written by Mark Streeter

The Director of Streeterlaw, Mark has been practicing Law since 1994. He has attained his Masters of Law in 1999 and in 2006 was awarded his Specialist Accreditation in Commercial Litigation. Mark is a member of ARITA, a graduate of the AICD and a member of AICM. A member of STEP, Mark enjoys working in the area of Wills and Estates. In 2020 Mark is the Chair of STEP NSW.

Call us on 02 8197 0105 to book an appointment with Mark Streeter!