The Role Of An Executor
The process for the discharge or removal of an executor of a Will
By Paul Maskell. Paul is a Partner of our firm leading our Elder Law team.
An executor of a Will is a person appointed by the Will-maker to administer his or her estate.
The duties of an executor are:
- To administer the estate in accordance with the terms of the Will;
- To remain neutral as far as issues between beneficiaries are concerned;
- To act in the best interests of all beneficiaries; and
- To expedite the administration of the estate as promptly as the circumstances allow.
The Court has the power to discharge or remove an executor on the basis that:
- The Court has a duty to see that estates are properly administered;
- The wishes of the Will-maker (particularly with the appointment of a particular executor) are to be given consideration but ultimately the question is as to what is expedient in the interests of the beneficiaries;
- Misconduct, breach of trust, dishonesty or unfitness need not be established to meet the threshold of expedience;
- Hostility as between executors is not itself a reason for removal but hostility will assume relevance if, and when, it risks prejudicing the interests of the beneficiaries.
In a recent High Court decision these issues came to the fore:
- P & L are brothers and were appointed executors of their mother’s (Mrs Jensen) estate;
- The main asset of the estate was the house property that L had occupied for at least seven years without making any payments;
- P sought to remove L as an executor and obtain an order for vacant possession of the property as P stated that Lhad refused to co-operate with the administration of the estate and to vacate the property;
- Mrs Jensen’s Will provided for her estate to be divided in three portions between P, L and her deceased son’s four children;
- Mrs Jensen had spent the last few years of her life in a rest-home. She had signed a Crown Residential Care Loan Agreement to pay for the rest-home care with a condition of the Agreement that the loan had too be repaid upon her death;
- As there were no other significant assets of the estate to repay the loan, the house property had to be sold;
- L was unwilling to co-operate in having the property sold, he wishing to continue to live in the property rent-free and paying no outgoings; and
- L declined to participate in the Court proceeding.
The Court concluded that L was exhibiting “a degree of intransigence which is preventing the estate being dealt with in an orderly way”. The Court continued: “it is now approaching two years since Mrs Jensen’s death, and no substantive steps have been taken to deal with her estate and distribute the residue in accordance with her Will. The inescapable inference is that L’s current situation, in which he lives in the estate’s main asset on a rent-free basis and pays no outgoings, is adversely affecting his ability (and willingness) to properly and promptly carry out his duties as co-executor and trustee of his mother’s estate.”
L was removed as an executor of the estate and an order for vacant possession was also made to enable the house property to be sold and the estate’s debts to be paid.