A Will-maker generally chooses an executor to administrate their deceased estate from friends, close family, or a professional such as a solicitor or the NSW Trustee and Guardian. The testator should select someone suited to the role, as it is a time consuming and, on occasion, daunting task.
The executor’s main responsibility is to faithfully administrate the estate in the best interests of the beneficiaries. Unfortunately, not every executor meets this obligation: a beneficiary (or fellow executor) may need to file a complaint with the Court to have an executor removed.
What is an executor’s role?
The executor’s role is to administrate the estate after the testator passes away. The executor has to identify and locate the deceased’s assets, pay off debt and protect the estate pending completion of the administration. Protection may involve taking out insurance on property, storing valuables, or defending the estate against challenge in court.
Removing the executor
Sometimes an executor too hastily agrees to take on the estate administration, and later wants to voluntarily resign their position. Only the Supreme Court of NSW can approve the resignation of an executor who has already commenced their duties. In the same hearing, the court will appoint an administrator to take over the executor’s duties. Alternatively, s75A of the Probate and Administration Act 1898 allows the executor to file a deed with the court to appoint the NSW Trustee as executor in their place.
The court can also remove an executor but is reluctant to do so unless there is sufficient cause. A fellow executor or beneficiary needs more than personal dislike or a vague suspicion to have an executor removed. The court will only remove an executor when there is evidence that he or she is unable to faithfully discharge their duties in the best interests of the beneficiaries.
The court might declare an executor unfit if they neglect their duties because of carelessness, incompetence, misconduct or actual intent. It is cause for concern if the executor:
- Fails to account for the estate assets;
- Fails to adequately communicate with beneficiaries;
- Causes unwarranted delays in the administration of the estate;
- Acts in his or her own interests contrary to the interests of other beneficiaries; or
- Causes unreasonable delays in transferring assets to the beneficiaries.
In these circumstances, a beneficiary or executor can apply to the Supreme Court of NSW for the removal of the executor or for an order of compliance.
If the testator appointed several executors and they are not working effectively together, that can be sufficient cause to remove one of the executors.
When the court orders the removal of an executor, it will revoke the grant of probate and issue a new grant to an appropriate administrator. If there is no opposition to the process then the Registrar can deal with the matter in chambers.
In Wise v Barry [2018], the court considered an application to remove a co-executor on the grounds that he had significantly delayed administration of the estate. The court noted that it had the discretion to remove any executor who causes inexcusable delay, refuses to do what is necessary without adequate reason, or impedes the proper administration of the estate.
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