The importance of clients appointing the right executor in their Will is paramount. Generally, there are two choices available; they can either appoint one or more individual family members or friends or a professional trustee company such as AET.

The role of executor is demanding and complex. They are responsible for the administration of the entire estate following the death of the Will-maker - from identifying and collecting all assets, to paying debts, to the ongoing protection and management of the assets - until the administration of the estate is complete.

Can an executor resign?

Yes, but it is very difficult. Once appointed, an executor cannot voluntarily resign without approval from the Court and then only when another person is appointed in his or her place.

The original grant of probate needs to be revoked and a new grant of probate put in place.

Similarly, an executor cannot be removed from that position by, for example, a disgruntled beneficiary without Court approval. Courts are often reluctant to remove an executor without strong grounds.

When would a Court remove an executor?

The Court has an inherent power to order the removal of executor who is 'unfit to act in such office'. In considering what 'unfit' means, the Courts have decided that the word 'unfit' bears its ordinary common meaning, that is the person is not fit, adapted or suited to continue as an executor. It does not relate to the physical health of the executor, but relates to all matters which affect the capacities of the person performing the executor's tasks.

An executor could be declared 'unfit' if they demonstrated a misconduct or there was a neglect of duty in the administration of the estate, such as:

  • the unwarranted delay in the administration of the estate
  • failure to communicate with beneficiaries
  • failure to account for the assets of the estate
  • the unreasonable delay in the payment of entitlements to beneficiaries.

It does not matter whether the dereliction of duty is based on intent, carelessness or incompetence.

In deciding whether to remove an executor, the Court exercises its discretion in the interests of the beneficiaries, to the security of the trust property and to an efficient and satisfactory execution of the trusts. These decisions are largely discretionary in nature.

Given that it is a discretionary decision, the Courts do not take this decision lightly, however, at the end of the day it is the welfare of the beneficiaries and the protection of their interest in the estate which is regarded as the paramount consideration in exercising any discretion.

If the Court reaches a conclusion that an executor will be removed, the question then is who is the appropriate person to take their place? This will be decided on the facts presented to the Court, which may conclude that a professional executor (such as AET) is the most appropriate entity in the circumstances. For example, if there was conflict between family members, absolute independence may be required. The alternative would be to appoint another member of the family to act in that capacity.

Summary

Deciding who should act as executor of their estate is an extremely important decision for your clients to make. The executor is responsible for the proper administration of the estate and once appointed cannot easily be removed. Any application to the Courts for removal of an executor will generally be to the detriment of the estate as it is a costly and time-consuming process.

In addition, if your clients have been asked to act as executor of an estate, they should be aware of what the role entails, particularly if the estate is complex, as once appointed it is difficult to resign.

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