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HELP! I’ve Got An Executor Dispute: Can I Remove an executor of a will?
It is not uncommon for clients to raise they are frustrated with how the executor of a will is administrating a deceased person’s estate.
These complaints typically arise from beneficiaries to a Will, being the category of person who benefits under the will. Before dealing with these issues, it is necessary to understand the nature of the executor of will, their position, and the responsibilities this position demands.
An individual referred to as the “testator” is the person who writes the will, or has someone draft a will on their behalf. During the creation of this will, the testator will generally (not always) appoint a person as “executor”. In the event the testator passes away, it is the executor’s responsibility and duty to administer the estate or allocate the money and assets an executor of the estate to the proper persons. If the testator is alive, changing which person or persons are executors is quite simple, involving a simple amendment to the will.
However, if the testator is deceased, it becomes difficult to remove the named executor of a will.
Reasons to Remove Executors of Will
There are several reasons to remove an executor of a will. However, the court will only remove an executor of a will if it can be reasonably established or shown that the executor is incapable of performing the necessary duties the position demands, is unsuitable for the position, or has become disqualified since their appointment.
An executor’s paramount duty is to administer the deceased’s executor of estate honorably and in good faith. The Court will typically consider the following circumstances as grounds to remove an executor:
- A failure to account;
- Unwarranted delays in the administration of the estate;
- A lack of mental capacity;
- Failing to communicate with the beneficiaries;
- Existence of a conflict of interest that taints the administration of the estate.
Obviously, the Court will be reluctant to remove an executor of a will unless the circumstances of the above failure are of a serious nature. This reluctance results from the Court not wishing to haphazardly override a deceased person’s wishes.
What Can Beneficiaries Do to Remove an Executor?
If the situation warrants that the executors is removed from their position, an application can be made to the Supreme Court of Queensland seeking an order that the executor is removed and replaced by another person. However, due to the timely nature involved in court proceedings, and the reluctance of the Court to interfere in the deceased person’s estates, there is a large time period
where an executors may remedy their actions.
Rather than instigating Court proceedings, it may be a more viable option to draft a letter to the executor of will which sets out your position and what actions need to be taken.
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