What Can I Do if an Executor Isn’t Doing Their Job?
Posted on in Dispute Resolution
Losing a family member is never easy. The administration of an estate can be particularly challenging for executors, who are often required to manage complex legal and financial matters during a period fraught with emotion. It is therefore not uncommon for disputes to arise, or for beneficiaries and co-executors to become concerned that an executor is not fulfilling their duties properly.
In many cases, concerns can be resolved through communication and cooperation, without the need for legal intervention. However, where an executor is failing to carry out their responsibilities, and the administration of the estate is being delayed or obstructed, there are legal remedies available to ensure the estate can be administered properly.
What is an Executor?
An executor has legal responsibility for the proper administration of an estate when someone dies leaving a Will. If an executor fails to assume their role, this can lead to unnecessary delays as well, and the estate may incur avoidable costs and losses.
The starting point before any litigation, and assuming an executor has not ‘intermeddled’ in the administration of the estate, will be for the executor to formally renounce their position.
However, if an executor has assumed their role and there are concerns that they might not be acting in the best interests of the estate and/or completing their duties properly, the court can take steps under Section 50 of the Administration of Estate Act 1985 (“the Act”), where necessary.
What does Section 50 do?
Section 50 provides the court with the discretion to remove or replace a personal representative (i.e., an executor). This means that provided the grounds below are satisfied, an executor can be replaced with someone who can efficiently and effectively fulfil the role of the representative. Alternatively, provided there are more than one representative, the courts can terminate one of the representatives who is causing friction when discharging the estate. This allows for a smoother administration of the estate, preventing one party from failing to make decisions or blocking them entirely.
What are the grounds for removal?
The statute provides the high court with discretionary power to undertake the removal or replacement of the executor or personal representative. The grounds under which this can happen are broad and focus on the proper administration of the deceased estate as well as the welfare of the beneficiaries. It is not therefore the role of the court to necessarily make findings of wrongdoing.
It should be noted that the courts will look to utilise their powers under section 50 of the Act as a last resort, wishing in all cases to adhere to the settlement wishes of the testator.
Assuming the courts decide to take this route, they will usually focus on one or more of the following grounds:
- Maladministration;
- Failure to administer the estate;
- Hindrance or delay to the administration of the estate;
- Conflict of interest; and/or
- Total breakdown in trust or confidence between the executor(s) and the beneficiaries that impedes the administration of the estate
As noted above, these factors will be considered in conjunction with whether the removal or replacement is in the best interest of the estate. Importantly, this is not punitive and instead is used by the courts to ensure that the estate is administered properly.
When might this occur?
An example of where this may happen could be where the executor is refusing to act due to strained family relations. In cases like these, the court will emphasise the importance of properly administering the estate to the beneficiaries.
The courts will try to avoid deviating from the deceased’s wishes. However, if an executor continues to act unreasonably and there has been a total breakdown in trust and confidence between the executors and the beneficiaries, such that it renders the administration of the estate impossible, it is likely that removal will be considered (if not sought) by the court.
What are the procedural steps?
To initiate the process, an application will need to be made to the court by a co-executor or a beneficiary of the estate. The method of application will depend on whether:
- there are ongoing proceedings; or
- there are no ongoing proceedings.
Once the application has been made, the court will consider the severity of the situation and choose the appropriate route to take.
Who will the court appoint?
The court’s primary consideration is ensuring proper administration of the estate and, as a result, will either appoint a co-executor, co-administrator, or a neutral third party. The important point to note is that the court will appoint someone to ensure impartiality and effective management of the estate.
Conclusion
An application under section 50 can be an effective remedy where an executor is preventing the proper administration of an estate. However, the court's power is exercised cautiously, and each case will turn on its own facts.
Given the court's reluctance to interfere with the deceased's choice of executor, anyone considering such an application should obtain specialist legal advice at an early stage. In many cases, concerns can be resolved without the need for court proceedings, saving both time and costs.
How Tozers can help?
Our Contentious Probate team at Tozers, which is led by an Association of Contentious Trusts and Probate Specialists (ACTAPS) accredited lawyer, specialises in not only providing expert legal advice but also in breaking down complex legal issues to help you understand the legal process and proceed with confidence.
If you are experiencing difficulties with a co-executor, or are concerned about the way in which an estate is being administered, please do not hesitate to contact our team today.