One of the most important considerations a testator has in preparing their will is appointing a person/s to act in the role of executor.
Many times, the phrase “it doesn’t matter, I won’t be here to sort it out” has been uttered. Whilst that is undoubtedly true, the choice of an executor will often set the tone for the administration of the estate. It can sometimes lead to conflict and in turn additional costs which may need to be borne by the estate.
If an executor fails to fulfill their duties properly, or if there is contention amongst the beneficiaries and executors, then it can lead to disputes arising.
When disputes cannot be resolved, or, are impeding the administration of the estate, then one of the considerations may be whether the executor(s) should be removed.
The discretion to remove a trustee or executor must be exercised by the court. For the discretion to be exercised, a finding must be made that circumstances exist which are sufficient to warrant the removal, this usually will be in circumstances where it is determined that the administration of the estate is impeded by the executor continuing to act in that role.
Generally, the court will only make this finding in circumstances where the court is persuaded that the due and proper administration of the estate in the interests of those beneficiaries entitled has been put in jeopardy, or prevented, by reason of the acts or omissions of the executor or, because of matters personal to him or her, or for some good reason the executor is not a fit and proper person to carry out the executorial duties. Essentially, the jurisdiction to remove a trustee will be exercised by the court where it is determined necessary to protect the interests of the beneficiaries.
Accordingly, when formulating an estate plan, it is important to consider whether the preferred executor is someone who is likely to uphold a testator’s wishes and act in the best interests of all beneficiaries. A failure to do so may lead to a lot of undue stress and costs for those involved in the estate.
Emma Nisbet,
Special Counsel
