The beneficiaries may wish to replace the executor of the estate as they believe that the executor is not acting in their best interests. However, the removal of the executor is not a simply a case of the beneficiaries acting unanimously and replacing the executor. Instead, an application must be made to the Supreme Court. Case law has shown that except in cases of clear cut serious misconduct or dishonesty, a court will be slow to revoke a grant of probate issued to the executor as the deceased had appointed that executor and the court does not wish to usurp the intention of the deceased. In many situations, the facts are contentious and the beneficiaries may not have sufficient evidence to pinpoint the executor’s misconduct or dishonesty. Finally, commencing and maintaining legal action in the Supreme Court is a costly exercise and can also be emotionally taxing.

Hence, when beneficiaries believe that the executor is not acting in their best interests, the beneficiaries ought to explore other means as their first step to resolving the issue such as:-

• Writing to the executor to seek more information and to put on record their concerns so that the executor takes into account these concerns in the administration of the deceased estate.
• Enter into mediation with the executor and reach agreement on the future steps in the administration of the deceased estate.
• The beneficiaries and the executor agree by consent to the removal of the executor and the appointment of another party to administer the deceased estate. Although an application to the court is still required and the court must approve the change, an agreement reached means the application is not contentious. This will take less time to achieve and legal costs will be much lower compared to contentious probate proceedings.
• Make an application for specific orders in relation to the executor’s administration of the deceased estate. For example, apply for court orders for the property of the deceased estate to be sold at its market value if there is concern that the executor may sell the property below its market value.
• Apply to the court for the executor to pass the accounts of the deceased estate. The purpose of this application is for the court to carry out an audit of the monies collected and spent in the deceased estate to determine their accuracy and appropriateness. However, the passing of accounts cannot venture into issues of misconduct or conflict of interest involving the executor. If these issues come to light in the passing of the accounts, then the beneficiary must commence proceedings against the executor if the beneficiary wishes to pursue the matter.

The removal of an executor is a complex, emotional and costly exercise but if there is misconduct or conflict of interest which impinges the interest of the beneficiaries and the estate as a whole, it is a task that may have to be undertaken.

Contact Robertson Hayles Lawyers at (08) 9325 1700 or by email at enquiry@robertsonhayles.com for legal advice on your options to resolve a dispute with the executor of the estate.

Note
The above content is only intended to provide a general overview of the topic discussed. It is not intended to be comprehensive nor does it constitute legal advice. You should seek legal advice specific to your circumstances before acting or relying on any of the above content.