The executor appointed is not acting in the best interests of the beneficiaries – can I remove the executor of the estate?

Beneficiaries often raise concerns about the competence or honesty of the executor appointed under a grant of probate. These concerns escalate when they do not receive their inheritance after a period of time has passed following the death of the deceased. In certain cases, the beneficiaries may be worried that their inheritance may be compromised as a result of a conflict between the executor’s personal interest and that of the beneficiaries. In these situations, when a tipping point is reached, the beneficiaries want to replace the executor.

The replacement of an executor is not a simple case of the beneficiaries acting unanimously and replacing the executor.   The removal of an executor can only be achieved by a beneficiary or creditor of the estate making an application to the court for the grant of the probate issued to that executor to be revoked and for a new grant to be issued to a beneficiary or creditor of the estate or a professional trustee company or the Public Trustee to administer the deceased estate. An executor is usually a family member or a close family friend. Hence, the removal of an executor is not only a complex and costly exercise but can also be emotionally draining.

In Western Australia, under the court’s inherent powers and pursuant to section 18 of the Supreme Court Act 1935 (WA),  the Supreme Court has the power to revoke the grant of probate issued in relation to a deceased estate within Western Australia. The court in all other states and territories in Australia have similar powers.   In what circumstances will the court exercise its powers and remove the executor by revoking the grant of probate issued? Case law indicates the court may act when it is shown that the executor: –

• has caused unwarranted delay in the administration of the estate.
• has failed to communicate with beneficiaries.
• has failed to account for the assets and liabilities of the deceased estate.
• has caused unreasonable delay in paying beneficiaries their entitlement.

The court may also remove the executor when it is found that the executor has a conflict of duty and interest in carrying out the executor’s executorial duties under the will.   However, the court has held that not every conflict should result in the removal of an executor but that removal will occur when the executor’s conflict of duty and interest is likely to affect the efficient and satisfactory administration of the estate.

In exercising the jurisdiction to remove an executor, the guiding principle is the welfare of the beneficiaries and the welfare of the estate as a whole. This turns on the facts of each case. It is based on the court’s consideration of all the factors impacting on the deceased estate which when combined show that the welfare of the beneficiaries is opposed to the continued appointment of the executor. A decision is then made based on the discretion of the court.

Contact Robertson Hayles Lawyers at (08) 9325 1700 or by email at enquiry@robertsonhayles.com for advice on the removal and replacement of 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.