Removal of Executor

Executors have a legal obligation to administer a deceased estate in accordance with the provisions of the Will. They must also do so in a way which is in the best interests of the beneficiaries of the estate. The executor/beneficiary relationship is one of trust, and as the executor has the power to administer the assets of the estate, which could be abused, the law will strictly enforce any breaches by the executor to this relationship of trust.

One of the ways in which the Court can enforce a breach of obligations against an executor, is to remove the executor from their position of power. The Court will not do this of their own volition, an application must be made by one of the beneficiaries of the estate against the executor to have them removed.

Legal basis to remove an executor

Section 34 of the Administration and Probate Act 1958 (Vic) (the Act) provides the legal basis for a beneficiary to remove an executor from a deceased estate. Section 34 of the Act states that the Court has the power to remove an executor in the following circumstances:

• The executor remains outside of Victoria for more than two years;
• The executor desires to be removed as an executor of the estate; or
• After the Court has issued a Grant of Probate on the estate, the executor refuses or is deemed to be unfit to act as executor.

When an executor is unfit to act

Of the above circumstances, the one that is of most contention is when a beneficiary believes that an executor is unfit to act as an executor. The most common reasons for this belief as are follows:

• The executor has a conflict of interest;
• The executor is not administering or distributing the assets of the estate in accordance with the provisions of the Will;
• The executor is favouring one beneficiary other another;
• The executor is of bad character;
• The executor is unreasonably delaying the distribution of the estate; and/or
• The executor is acting in a way that is contrary to the law.

If you are a beneficiary of an estate, it is important that you obtain legal advice before commencing any process to have an executor removed. While the Court will enforce a breach of the executor’s obligations, they also will protect executors against frivolous lawsuits or vexatious beneficiaries.

Our estate lawyers can advise you to whether your circumstances are likely to raise to the level of warranting an application to the Supreme Court of Victoria to remove an executor.

After removal of executor

If an executor is removed by the Court, the next matter to be dealt with is, who will be the replacement executor. This is not always a straightforward question to answer, and the Court has wide powers on who they can appoint as the new administrator of an estate.

The Court has the power under section 34 of the Act to appoint any “proper person” or trustee company as administrator of the estate in the place of a removed executor. The Court will be focussed primarily on ensuring that the administrator of the estate will be able to discharge their obligations and can remain independent. It is more common for the Court to favour an independent administrator, such as State Trustees, rather than a family member or beneficiary of the estate.

The costs of an independent administrator will also be likely borne by the estate, so it is important to understand that once an executor is removed, it can result in incurring further costs to the estate and delay.

How our estate lawyers can help…

At PCL Lawyers our estate lawyers have experience in advising and assisting clients in relation to removing executors from a deceased estate. If you are a beneficiary of a deceased estate and you believe the executor is failing in their obligations, give one of our estate lawyers a call who can advise you on your legal rights.

About The Author - Philip Drew

Philip is a Senior Associate and leads the Wills and Estates practice group at PCL Lawyers. He advises clients across a wide range of complex estate planning matters, the administration of deceased...