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Removal of Executor (WA)

A testator assigns an executor in his or her will to administrate the deceased estate. Therefore the choice of executor is crucial, as the role is complex and demanding. The paramount duty of the executor is to competently administrate the estate while acting in the best interest of the beneficiaries. Sometimes, it is necessary for a beneficiary to lodge a complaint about the incompetence of an executor, to have them removed and replaced by a more suitable individual. This article explains the process of removal of executor in Western Australia.

What is an Executor?

A testator can select an executor from amongst their family or friends, or choose to engage a professional such as a solicitor or the Public Trustee of Western Australia. The chosen executor will be responsible for administrating the estate after the testator’s death, including locating and identifying all the deceased’s assets, discharging debt and safeguarding the estate until administration is complete. The executor also has a responsibility to defend the estate against any challenge to the validity of the will or contest against the distribution of the estate.

Involuntary Removal Of Executor

An executor can voluntarily resign, but this can be a difficult process if the executor has already begun to discharge the duties of executorship. Once he or she begins to act, an executor can only resign with the approval of the Supreme Court, after which an administrator will be appointed to the role. There is authority under the Public Trustee Act 1941 for the court in such cases to assign the Grant of Probate to the Public Trustee.

An executor also cannot be involuntarily removed without court approval. The court is reluctant to remove an executor without sufficient grounds, so a disgruntled beneficiary must demonstrate more reason than just a general dislike of the personal representative. An executor will only be removed if he or she is unfit to ensure the due administration of the estate in the best interests of the beneficiaries.

An executor might be declared unfit if they, through intent, carelessness or incompetence, demonstrate misconduct, or neglect their duty to faithfully administrate the estate, by:

  • Causing unwarranted delay to the administration of the estate;
  • Failing to communicate with the named beneficiaries;
  • Failing to account for the assets of the deceased estate; or
  • Causing unreasonable delay to the transfer of entitlements to the beneficiaries.

An executor must also avoid acting for his or her own benefit: if they do so, a beneficiary should first give a warning to the executor (if the matter is not urgent). If the conduct is not addressed, the beneficiary should file an application with the Supreme Court of Western Australia for an order that forces the executor to comply, or orders the removal of the executor altogether.

Courts can order Removal Of Executor

There are no fixed rules about the removal of an executor in Western Australia, beyond that the applicant must prove that it is not in the best interests of the estate for the executor to continue as the personal representative.

Court have authority to order the removal of an executor who is clearly unfit to act in the office. The statutory provisions state that an application for the removal of an executor must include an affidavit proving that the proper administration of the estate requires the removal of the executor, or establishing the benefit of replacing the executor.

Can A Beneficiary Sue An Executor?

If an executor unduly delays the administration of the estate or acts in such a way as to disadvantage a beneficiary, the beneficiary has other options, including commencing court proceedings against the executor.

Case Study

In a recent Supreme Court case, O’Sullivan v O’Sullivan Executor of the Estate of JM O’Sullivan [2021], the plaintiff sought the removal of the executor of the estate. The defendant obtained a Grant of Probate but the Plaintiff, the other child of the deceased, was not provided with a copy of the will or the Grant of Probate for some nine months. The court allowed the plaintiff to make a Family Provision Claim out of time, but the executor refused to engage with the plaintiff or the court, did not discharge his duties as executor, made threats against the plaintiff and threatened to destroy property of the deceased estate. The court found this behaviour “nothing short of reprehensible”, and concluded that the executor should be removed from his role and replaced by the Public Trustee.

Armstrong Legal can help you with a recalcitrant executor, hold them to account and even take steps for the removal of executor from their post. If you have any questions about the responsibilities of an executor, or need our assistance with any legal matter, please call our offices on 1300 038 223 or contact our contested wills team to discuss your case.

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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