Executors can be Removed if Necessary

23rd January 2023

Disputes between executors of a Will and beneficiaries are uncommon, but they sadly can arise. The RMB Lawyers Wills & Estates & Disputed Wills division explains the steps to remove an executor.

Disputes over executors can concern a range of matters but generally stem from an executor not meeting their obligations to faithfully administer the estate in the best interests of the beneficiaries.

Executors’ responsibilities include identifying the deceased’s assets, investigating and verifying any debts, applying for Probate of the Will, dealing with tax obligations and distributing the estate.

Executors must undertake the fiduciary duties which have been bestowed on them by the Will and under estate law. Executors can be held personally liable to the beneficiaries and creditors of the estate for any misconduct or maladministration on their part.

Where an executor refuses or is incapable of fulfilling their obligations, the beneficiaries (or another executor) can seek relief from the Supreme Court, including requesting the Court to remove the executor altogether when they won’t renounce their role voluntarily.

The Court sets a very high threshold for such removal and is unlikely to act unless there is evidence that the executor is unable to faithfully discharge their duties in the best interests of the beneficiaries.

This is more substantial than a personal dislike for the executor or even that they aren’t progressing the administration as quickly as the beneficiaries may desire.

However, delay is a significant cause for disputes. The Court has determined that the reasonable time for an executor to complete the administration of the estate is one year from the date of the Grant of Probate.

The case of Wise v Barry [2018] confirmed that the Court has the discretion to remove any executor who causes inexcusable delay, impedes the proper administration of the estate, or refuses to do what is necessary without adequate justification.

When the court orders the removal of an executor, the Grant of Probate will be revoked and a new grant issued to an appropriate administrator.

Such disputes put in to focus the importance of taking great care when appointing an executor. Whoever is appointed must understand their obligations to the beneficiaries’ and the rights of all stakeholders in the estate.

If you or your family have further questions about executors or your Will in general, your first step should be to contact our office to arrange a free consultation. You can contact us by by phone or our 'Ask a Question' tool on our website.