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Removing An Executor (Qld)

An executor plays a very important role in the administration of a deceased estate. Sometimes, an executor is unable or unwilling to faithfully discharge the duties of this role, necessitating the removal of the executor. The Supreme Court of Queensland can allow an executor to voluntarily renounce their duties or order the removal of an executor when it is in the best interest of the estate and the beneficiaries. This article outlines the legal process involved in removing an executor, with reference to recent Queensland case law.

Executor Of Estate

A testator should make their choice of executor carefully, giving consideration to the fact that the role can be time-consuming and occasionally difficult. As such, a testator should select a competent person with good attention to detail, and the necessary levels of patience and communication skills to administrate the estate. Many testators appoint a spouse, close friend or family member to the role of executor, but there is also the option to appoint a solicitor or the Public Trustee to carry the burden of the administration. In Baldwin v Greenland [2006], the Supreme Court observed that reasonable testators make the choice of executor based on many different reasons, including respect, loyalty, necessity, professional expertise or other unknown reason.

Responsibilities Of The Executor

An executor administrates an estate until their duties are fully discharged. Depending on the size of the estate and the complexity of the will, the duties may be relatively simple and straightforward, or complicated and arduous. There are, however, some commonalities across the administration of a deceased estate.

An executor is responsible for identifying the deceased’s assets, paying any outstanding debt, communicating with interested parties and protecting the estate until the assets are transferred to the proper beneficiaries. Safeguarding the estate includes securing and insuring valuables, and representing the estate in case of litigation (such as a challenge to the will or a claim against the estate).

Reasons for removing an Executor

Sometimes an executor is unprepared for the enormity of his or her task and wishes to hand over the responsibility to someone else. If the court has not already granted probate, the named executor can appoint a solicitor or the Public Trustee to take over the administration of the estate. It is harder to abdicate responsibility after the court has granted probate to an executor. In Queensland, the Succession Act 1981 provides the court with the authority to revoke a grant of probate and appoint another administrator to assume the administration of the estate.

The same legislation allows the court to order the involuntary removal of an executor in Queensland. The court may revoke an executor’s authority on the basis of misconduct, fraud or incompetence, or if co-executors cannot work together to execute the duties of administration. In Re McLennan [2018], the court ordered the removal of two siblings who were working as co-executors of their father’s estate in the interest of the due and proper administration of the estate. The court’s guiding principle is that the removal of an executor is warranted when the due administration of the estate is in jeopardy.

However, the Queensland Supreme Court has also made it clear that it will not interfere lightly in the testator’s choice of executor. Even if an executor has made errors in their administration of the estate, this is not always sufficient ground for the removal of the executor. In Budulica v Budulica [2017], the court took into account the willingness of an executor to rectify his errors when he was accused of incompetent administration. The court ultimately found that it was not desirable or even necessary to order the removal of the executor.

Case Study on removing an executor

The Supreme Court of Queensland recently addressed the necessity for removing an executor in the case of Permewan, Re [2021]. In this case, the testator died leaving three children, one of whom was the nominated executor of the estate.

There were a number of grounds for the removal of the executor, including his conflict of interest (there was ongoing litigation that questioned asset redistribution prior to the deceased’s death) and his animosity towards the applicant (evidenced through voice recordings of the executor talking about the applicant in an abhorrent manner).

The court also considered the executor’s refusal to negotiate with the applicant and delight that she would incur litigation fees while the estate would cover the costs of defending the claim. The court found that the applicant had made an overwhelming case for the removal of the executor. Ultimately, the court was satisfied that the continued appointment of the executor in this case would frustrate the proper administration of the estate.

Advice For Testators

One way for a testator to mitigate the chances of problems with an executor is to name a number of potential executors in the will, allowing a hesitant nominee to decline without issue. This also has the potential to result in a co-executorship, thereby reducing the stress on each individual person and providing joint oversight of each executor’s actions.

Whether you are an executor who needs assistance, a beneficiary dissatisfied with an executor’s administration of a deceased estate, or a testator who is worried about their choice of executor, Armstrong Legal is here to help with sound advice. The contested wills team can negotiate with an uncooperative executor, or escalate the matter on your behalf to the Supreme Court to obtain the removal of an executor. Contact us or call 1300 038 223 today to discuss your legal needs.

Dr Nicola Bowes

This article was written by Dr Nicola Bowes

Dr Nicola Bowes holds a Bachelor of Arts with first class honours from the University of Tasmania, a Bachelor of Laws with first class honours from the Queensland University of Technology, and a PhD from The University of Queensland. After a decade working in higher education, Nicola joined Armstrong Legal in 2020.

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