An executor is a person appointed by Will to carry out the administration of the estate. As a result, beneficiaries rely on the executor to perform his/her duties properly including:-
- Take out probate; and
- Administer the estate efficiently and in accordance with the Probate and Administration Ordinance (Cap 10)
Unfortunately, in reality, sometimes the executor turns out to be far from perfect. Beneficiaries may find themselves stuck with an executor who is unresponsive, difficult, hostile, or simply unfit for or uninterested in the job. The followings are ways to "dispose" of the unwanted executor:-
Option 1- Caveat
This is a form of caution placed against the estate to prevent the issue of a grant of probate without notice to the caveator. A caveat will remain in force for 6 months, after which it ceases to have effect. A caveat can be repeatedly renewed every 6 months.
Procedure and requirements in respect of caveat can be found in Rule 44 Non-Contentious Probate Rules (Chapter 10A)
Option 2- Renunciation of the right to probate by the executor
This option is only possible if the executor is willing to do so. No one can be forced to be an executor even if he/she has agreed to do so during the testator's lifetime. If the appointed executor no longer wishes to act in such capacity, he/she should exercise the right of renunciation.
Renunciation can be made orally on the hearing of any petition or probate action or in writing signed by the person renouncing. The form for added of renunciation of Probate can be found on the judiciary website (please hyperlink he form.)
Once made, although a renunciation can be retracted on the order of the court, the court is normally reluctant to do. In particular, where probate has already been granted to someone else, only in exceptional circumstance will the court allow such retraction.
Option 3 – Citations
Where the executor is unwilling to renounce, citation is a useful, non-contentious way to force the executor to take action in relation to the taking of the grant of probate. However, before issuing a citation, the citor needs to issue a caveat first.
There are 2 types of citations:-
- A citation to accept or refuse to take a grant; and
- A citation to propound the Will
Citation to accept or refuse to take a grant
Where an executor has failed to take any steps to obtain a grant of probate, the executor can be cited by the person next entitled to a grant to accept or refuse probate. If the executor fails to appear or apply for a grant, the citor is entitled to apply for a grant to him/herself.
Where an executor has intermeddled in the estate but has not taken a grant within 6 months of the testator's death, the executor can be cited by any person interested in the estate. If the time limit for appearance has expired and the executor has failed to enter an appearance, the citor may apply for an order requiring the executor to take a grant within a specified timeframe or for a grant to him/herself or to a third party.
Citation to propound the Will
This may be issued by anyone who has an interest contrary to that of the executor.
If the time limit for appearance has expired and the executor has failed to appear, the citor may apply for an order for a grant as if the Will were invalid.
Procedure and requirements in respect of citations can be found in Rule 45 Non-Contentious Probate Rules (Chapter 10A)
Post Grant - What if the executor has taken out probate but subsequently refused or unwilling to administer the estate?
Option 1 - Inventory and account
The cheapest and quickest way to force an executor to account for his activities is by making an application to court for an order to compel him to exhibit inventory and account in respect of the administration.
Once obtained, the beneficiaries can examine the documents and consider whether any further steps will be required.
However, where the excecutor is simply uninterested to continue to administer the estate, beneficiaries may be better off focusing their attention on replacing the executor.
Option 2 – Removal of the executor
Section 33(3) Probate and Administration Ordinance gives the court the power to remove an executor and provide for the succession of another person in place of him/her if it is satisfied that the due and proper administration of the estate and the interests of the "persons beneficially entitled" requires it do so.
Section 36(3) of the Ordinance also gives the court the power to appoint some person to be the administrator of the deceased's estate if it appears to the court to be "necessary or convenient " to do so. What constitutes "necessity or convenient" is fact sensitive. [see Re Loo Che Chin (HCCA3131/2011)]
In the case of Chan Sau Heung v Kwan Siu Fai (HCMP2620/2012), Hon Poon J takes the view that the applicant should consider the following:
- Whether removal of the grantee (executor) without revocation of the grant is sufficient. If so, then he should proceed under section 33(3);
- Whether there are additional special circumstances that require
revocation of the grant as well. If such circumstances exist,
then he should proceed under section 33(1).
What constitutes additional special circumstances depends on the actual facts of the case. Examples include mental incapacity of the grantee; disappearance of the grantee who had not administered the estate; and exceptionally, the grantee wishing to be relieved of his duties.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.