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Challenging an Executor (Vic)

Executors of deceased estates sometimes carry out their role in a way that one or more of the beneficiaries is dissatisfied with. This may lead to the executor being challenged. In Victoria, the process for challenging an executor involves making an application to the Supreme Court of Victoria under the Administration and Probate Act 1958. This page deals with challenging an executor in Victoria.

What is the role of an executor?

In Victoria, an executor is responsible for administering the estate of a deceased person. This may involve identifying and valuing the deceased person’s assets, paying off debts, and distributing the remaining assets to the beneficiaries named in the will. The executor must also fulfill their legal and tax obligations, including obtaining a grant of probate from the Supreme Court of Victoria and filing tax returns on behalf of the estate. They must also provide a statement of accounts to the beneficiaries after the administration of the estate is complete.

Grounds for challenging an executor

In Victoria, under section 34 of the Administration and Probate Act, a party with an interest in the deceased estate can apply to have an executor removed from the administration on any of the following grounds:

  • They have been outside of Victoria for a period of two years or more;
  • They consent to being discharged from the role;
  • They have refused to act as executor or administrator;
  • They are incapable of acting as executor or administrator;
  • They are unfit to act as executor or administrator.

Process for challenging an executor

To challenge an executor, an interested party, such as a beneficiary or creditor, can file an application with the Supreme Court of Victoria. The application must include the grounds for the challenge, and the interested party must provide evidence to support their claim.

Once the application is filed, the court will set a hearing date, and the interested party must serve notice of the application on the executor and any other interested parties, such as other beneficiaries. At the hearing, the court will consider the evidence and make a decision on whether to remove the executor.

An executor is unlikely to be removed from an administration against their wishes unless there is a compelling reason for this to occur such as a significant conflict of interest or a significant delay in administering the estate.

Common reasons for challenging an executor

Some reasons that an executor may be removed from administration are set out below.

Breach of duty

If the executor has breached their duties, such as by failing to administer the estate properly, failing to distribute assets in accordance with the will, failing to communicate with beneficiaries, or failing to act in harmony with a co-executor, an interested party can apply to the court to remove the executor.

Mental incapacity

If the executor becomes mentally incapable of carrying out their duties, an interested party can apply to the court to remove them.

Conflict of interest

If the executor has a conflict of interest, such as if they are a beneficiary under the will or have a personal relationship with a beneficiary that could impact their impartiality, an interested party can apply to the court to remove the executor.

Connock, Barbara Faye v Connock, Richard Anthony

In the 2021 Supreme Court of Victoria case of Connock, Barbara Faye v Connock, Richard Anthony, the question of whether a conflict of interest was sufficient cause for removing an executor was examined. The court referred to an earlier case, Monty Financial Services v Delmo (1996), which established that not every conflict of interest justified removing an executor, but that an executor could be found “unfit to act” based on a conflict of interest.

In this case, the plaintiff, the deceased’s widow, sought to remove the executor, the deceased’s son from a previous marriage. She argued that the executor had a conflict of interest as he was a prospective beneficiary of litigation against the estate and was contesting the terms of the will. The plaintiff claimed that the executor was unwilling to follow the will’s terms as a result.

The court found that there was indeed a conflict of interest between the executor’s duties and his personal interest in the outcome of the estoppel proceeding. However, this conflict did not warrant his removal. As the executor and defender of the estate, the son had a duty to assess the validity of his claim against the estate and halt distribution based on a viable claim against the estate.

The court considered various factors, including the near completion of estate administration, the executor’s legal expertise in assessing the viability of his claim, and the preservation of the plaintiff’s bequest until the court’s final decision.

In conclusion, individuals concerned about their executor choice should consider naming a second person as executor in their will. This reduces the pressure on any one person and ensures each executor can oversee the others.

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

Michelle Makela

This article was written by Michelle Makela

Michelle has over 15 years experience in the legal industry, working across commercial litigation, criminal law, family law and estate planning.  Michelle has been involved in all practice areas of the firm and in her personal practice has had experience in litigation at all levels (State and Federal Industrial Tribunals, the Supreme Court, Court of Appeal, the Federal Court, Federal...

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