Removing an Executor

An executor is a person who has been appointed under a will to administrate the estate of the deceased. The executor is usually a friend or family member of the testator, but a professional – for example, a lawyer – can also be appointed as executor. The executor is responsible for faithfully administering the estate in the best interests of the beneficiaries. However, in some situations, the person named in a will as executor may not be suitable to carry out the duties. This may be because they have lost or are losing legal capacity, or because of their conduct since being appointed as executor. In this situation, removing an executor becomes necessary. 

What are the executor’s duties?

An executor is responsible for administering the estate of the deceased. This may include collecting assets, paying debts and selling or distributing the remaining assets in accordance with the will’s provisions. It may also include arranging the deceased’s funeral, locating the will and obtaining a death certificate.

An executor has a duty to:

• Communicate clearly and promptly with the beneficiaries
• Keep accounts of the estate’s assets and debts
• Deal with the estate without unreasonable delay

If probate is required, the executor must apply for probate.

An executor should generally finalise an estate within a year of the date of the deceased’s death.

Loss of legal capacity

A beneficiary may wish to remove an executor because they suspect that they lack legal capacity or are losing legal capacity.

Legal capacity is the ability to make legal decisions like making a will, signing a contract or participating in litigation. A person has legal capacity if they can understand the significance of what they are doing. However, the level of cognition and competence required for one legal decision can be different from that for another. A person can have the capacity to make some types of decisions but not others.

Establishing that an executor has lost capacity

Loss of capacity can occur gradually or suddenly. An executor who has lost or is losing capacity may pose  risks to beneficiaries such as financial losses caused by risk-taking, poor administration of the estate and heightened tension between the beneficiaries. These risks can be limited by the beneficiaries acting promptly upon becoming aware that the executor has lost or is losing capacity.

When an executor has lost capacity prior to probate being granted, an application can be made for them to be ‘passed over’. If this occurs, the court will appoint someone else in the role of executor. If a person has already commenced acting as executor when concerns arise about their capacity, an application can be made for them to be removed. This brings their duties as executor to an end.

Removing an executor for misconduct

A beneficiary may also wish to remove an executor because of their action or inactions in dealing with the estate. Situations where an executor may be removed because of misconduct include where:

• The executor has misappropriated assets
• The executor has neglected their duties
• The executor is of bad character (for example, they have committed a serious crime or are in prison)
• The executor is overseas for a long time or cannot be located
• Failure to deal with the estate within a reasonable time
• Failure to communicate with beneficiaries

Applying to remove an executor

An application can be made to the Supreme Court to remove an executor who lacks capacity or who has behaved inappropriately.

The court will require evidence as to why the person is not suitable to act as executor. This may be medical evidence if the concerns relate to the executor’s capacity or it may be evidence of the executor’s acts or omissions in dealing with the deceased estate.

If the court is satisfied that the executor cannot perform their duties, it will appoint another person in the role. This may be done temporarily, if the court considers that the executor is only temporarily unable to perform their duties, or on a permanent basis.

Removing an executor is not done lightly

The courts will not remove an executor unless their conduct or incapacity is serious enough to warrant this. Courts generally try to avoid interfering in the will-maker’s choice of executor. However, if there is a lot of evidence that the executor is unsuitable for the task, the court will remove them in order to protect the rights of beneficiaries.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.