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 major 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. This article outlines how to remove an executor in New South Wales.

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.

There is also judicial facility for the involuntary removal of an executor. The court is disinclined to remove an executor unless there is sufficient cause: a fellow executor or beneficiary needs more than personal dislike or a vague suspicion. 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 or actual intent or if they display misconduct. It is cause for concern if the executor:

1. Fails to account for the estate assets;
2. Fails to adequately communicate with beneficiaries;
3. Causes unwarranted delays in the administration of the estate;
4. Acts in his or her own interests contrary to the interests of other beneficiaries; or
5. 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. In the NSW case of Eastlake v Eastlake [2015], the Supreme Court stated that it refrained from finding misconduct in the case, because a breakdown in the working relationship between the executors was sufficient to frustrate the administration of the estate.

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 duty of the executors in this estate was to sell the assets to pay the debts of the estate. The executor failed for years to vacate a property that was the primary asset, and moved his wife and her children into the property without his fellow executor’s permission.

The court found that the administration had stalled due to the defendant’s insistence on remaining in the residence. 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. It was unnecessary to make a finding of misconduct, and the reason for the dereliction of duty was immaterial. The court ordered the removal of the executor and a revocation of the original grant of probate in favour of a grant for the other executor.

Here to Help

If you are a co-executor or beneficiary and feel that an executor is not properly undertaking their duties, contact us to discuss your legal options. We can help you hold an executor personally responsible if their behaviour causes the estate financial disadvantage. We can help you negotiate with an uncooperative executor, or assist you to file a request with the Supreme Court to remove an executor.