Passing Over or Removing an Executor (SA)

An executor is responsible for collecting the assets of the deceased, paying their debts and distributing their assets to the beneficiaries under the will. Executors are obliged to act in the best interests of the beneficiaries. There are a number of different issues that can arise with executors, particularly where the beneficiaries have concerns that the executor cannot comply with their duties. This article deals with the issues that can arise in relation to executors, including passing over or removing an executor in South Australia.

Passing over an executor in South Australia

If an executor needs to be relieved of their duties before probate has been granted to them, they can be “passed over” as executor before they have the opportunity to act. A beneficiary or another interested party in an estates matter can make an application to the Supreme Court of South Australia to pass over an executor.

The main consideration of the court in determining any application to pass over an executor is the “due and proper administration of the estate” and what is in the best interest of the beneficiaries entitled to the estate. There is no specific section in the Administration and Probate Act 1919 which gives this court the power to make an order passing over an executor. Traditionally, a court will not remove an executor chosen by a testator or depart from their wishes about who acts as their executor without good cause.

In the 2005 Supreme Court of South Australia decision of Re Estate of CRANE, it was held that a court has jurisdiction to pass over an executor in “limited circumstances” because it forms part of the jurisdiction of the Court of Probate established in England. Courts will not readily pass over a named executor and in general, a person who is named as executor by a testator is entitled to a Grant of Probate. The power to pass over an executor should be exercised only in exceptional circumstances.

Some of the reasons that an executor may be passed over in acting as executor found in English case law are as follows:

1. The executor resides out of the jurisdiction/overseas;
2. The executor is of bad character (including having been convicted of a criminal offence – ie fraud, manslaughter);
3. The executor meddles in the estate but refuses to apply to the court to obtain a Grant of Probate;
4. The executor does not have capacity/is not competent to obtain a Grant of Probate; and
5. The executor is not well enough to obtain a Grant of Probate.

Given an executor will only be passed over in exceptional circumstances, an application to pass over an executor should only be made if an exceptional circumstance exists.

Removing an executor in South Australia

If probate has been granted to an executor named in a will, but the person can no longer act in their role, a court can remove them. As a result of this, their executor duties are ended.

The reasons that an executor may be removed are similar to the reasons why an executor can be passed over and include the executor no longer having capacity, the executor misappropriating assets, neglecting their duties, being overseas or of bad character, or because there has been an unexplained delay or a failure to communicate with beneficiaries.

A beneficiary who has concerns regarding the executor’s actions can make an application to the Supreme Court to remove the executor. If the court is satisfied the executor needs to be removed, it can appoint another person in the role of executor.

An executor will not be removed lightly, and evidence needs to be provided as to why they need to be removed and are no longer appropriate to act in the role.

Determination of a question

A person who has an interest in a deceased estate, including a beneficiary of the estate, can apply to the Supreme Court of South Australia under Rule 232.2 of the Uniform Civil Rules. Under this section, an action may be brought by a beneficiary (or an executor) for the determination of any question, including the following as set out in the Rules:

(i)        questions arising in the administration of an estate or in the execution of a trust;

(ii)       questions as to the composition of a class of persons having a claim against an estate or a beneficial interest in an estate or in property subject to a trust; or

(iii)      questions as to the rights or interests of a person claiming to be a creditor of an estate or to be entitled under the will or on the intestacy of a deceased person or to be beneficially entitled under a trust;

An action can also be brought for under this rule for the following orders:

• an order directing an executor, administrator or trustee to—
• furnish and, if necessary, verify accounts;
• pay funds of the estate or trust into court; or
• do or abstain from doing any act;
• an order approving any sale, purchase, compromise or other transaction by an executor, administrator or trustee; or
• an order directing any act to be done in the administration of an estate or in the execution of a trust that the court could order to be done if the estate or trust were being administered or executed under the direction of the court.

For this application to be made an Originating Application and supporting Affidavit will need to be filed in the Supreme Court.

If you are a beneficiary of an estate in South Australia and are having difficulties with an executor, please do not hesitate to contact Armstrong Legal.