Australia: Challenging an Executor of a Will

An Executor is a person (or persons) nominated by a Will maker to ensure that the terms of their Will are carried out upon their death. While it sounds straightforward, there is often confusion surrounding the powers of an Executor and what happens if they misuse those powers or do not act in the best interests of the beneficiaries of the Will. Here, we explore some common questions about Executors and challenging an Executor of the Will.

The roles and responsibilities of an Executor

Appointing an Executor is not a decision that should be taken lightly. An Executor has many responsibilities, which can range from arranging the funeral through to repaying any debts owed by the deceased in their lifetime, claiming under any available insurance policies, protecting the Will maker's assets until distribution, including by way of investment, obtaining probate, if necessary, and ensuring that assets are distributed according to the terms of the Will. If the Will establishes a Trust or Trusts, then the person nominated as Executor may also be required to take on the role of a Trustee.

You can learn more about these duties in our article:
5 things Executors of an estate must do.”

It is important to appoint an Executor that will be able to carry out these duties in a practical and impartial manner. Often Will makers choose to appoint more than one Executor to act jointly (or jointly and severally), where each of the Executors have a responsibility to the deceased's estate unless one or more of them decide to renounce their appointment as Executor.

It is also recommended that an alternate Executor or Executors are appointed if the Executor(s) appointed in the first instance are unable to act in that role. In circumstances where there is no suitable Executor to appoint, a solicitor or trustee company may act as the Executor. Our experienced team of Sydney Wills & Estates Lawyers have extensive experience in this unique area of the law and are here to assist.

If a Will is disputed upon the Will maker's death, then the Executor as the representative for the estate, will be the one to respond to such a dispute, including giving instructions to legal representatives and to defend the estate in the event that litigation is commenced against the estate. However, what happens if it is the Executor themselves that need to be challenged or removed?

Challenging or removing an Executor

Challenging or removing an Executor can be done for a variety of reasons. It could be as a result of a dispute or disagreement between Co-Executors or a dispute between the Executor and the beneficiaries, whereby the beneficiaries of the Will feel that the Executor is not acting in their best interests.

Some common reasons why someone may wish to challenge or remove an Executor, include, where the Executor:

• has delayed obtaining a Grant of Probate, where it is generally accepted that the Executor should obtain Probate and administer the estate within 12 months of the deceased's death (often referred to as “the Executor's Year”);
• has neglected their duties or put their own interests ahead of the beneficiaries;
• has a conflict of interest in respect of the deceased's estate;
• is of unsound mind or does not have the legal capacity to carry out their duties;
• has misappropriated the estate's assets or is otherwise acting improperly whilst managing the estate.

If a Co-Executor or a beneficiary of a Will wishes to challenge or remove an Executor, it may be necessary to make an application to the Court immediately to remove the Executor.

The Court has inherent powers and jurisdiction, where it may exercise its discretion to make an order removing an Executor if there is substantiating evidence that they have been unable to faithfully undertake their duties in the best interests of the beneficiaries. The undisputed inherent jurisdiction of the Court allows them, where probate had already been granted to the Executor(s), to make an order to revoke the Grant of Probateⁱ.

Removing an Executor: The case of Wise v Barry

Over the years, the Supreme Court has dealt with numerous proceedings challenging the Executorial duties being properly executed and making an order removing the Executor where the Court has found that the Executor has failed to do so.

An example of this is the recent decision in the NSW Supreme Court case of Wise v Barry; The Estate of Robyn Margaret Wiseⁱⁱ where the Honourable Justice Hallen considered the prejudice suffered by the beneficiaries due to the delay in each of them receiving their entitlements under the Will, as administering the estate required the Executors to sell one of the assets, a real property.

This was to facilitate the repayment of the mortgage and payment of other testamentary expenses and for the net proceeds from the sale of the property to be distributed to the beneficiaries in accordance with the Will. This did not happen because one of the Executors (the Executor that was sought to be removed), was determined to remain living in the property.

In the case of Wise v Barryⁱⁱⁱ, the Court determined that the Executor in question did not complete their duties and that an order should be made to remove the Executor from his office and that the Grant of Probate be revoked.

Need to challenge a Will or have an Executor removed?

Whether you feel an Executor is not acting in the best interests of the beneficiaries or carrying out their duties as instructed by the deceased in their Will or you wish to challenge a Will, it is important to seek legal advice as soon as practical from an experienced Wills & Estates Lawyer.

It can often be a complex and time-consuming process challenging an Executor or removing them from a Will.

Footnotes

¹ Bates v Messner (1967) 67 SR (NSW) 187, Asprey JA at 189, 191 – 192.

¹[2018] NSWSC 1726.

¹Ibid.