Removing an Executor (WA)

When a person makes a will, they assign an executor to administrate the deceased estate. The choice of executor is crucial, as the role can be complex and demanding. The executor must competently administrate the estate while acting in the beneficiaries’ best interests. Sometimes, a beneficiary needs to lodge a complaint about the incompetence of an executor, in order to have them removed and replaced by someone more suitable. This article explains the process of removing an executor in WA.

What Is An Executor?

A testator can nominate one of their friends or family members as executor, or choose to engage a professional like a solicitor or the Public Trustee of Western Australia. The chosen executor will be responsible for administrating the deceased estate after the testator’s death, including locating and identifying all their assets, discharging debt and safeguarding the estate until administration is complete. The executor is also responsible for defending the estate against any challenge to the will’s validity or contest of the will’s distribution of the estate.

Involuntary Removal Of Executor

An executor can resign from the role voluntarily, but this can be a difficult process if the executor has already commenced undertaking the duties of executorship. Once an executor begins to act, he or she can only resign with the Supreme Court’s approval after which an administrator will be appointed to the role. The Public Trustee Act 1941 authorises the court in such cases to assign the Grant of Probate to the Public Trustee.

An executor cannot be involuntarily removed without the approval of a court. The courts are reluctant to remove an executor without compelling grounds, so a disgruntled beneficiary must have more than just a general dislike or distrust of the personal representative. An executor will only be removed if there is evidence that he or she is unfit to carry out the role of ensuring the due administration of the deceased estate in the best interests of the beneficiaries.

An executor might be declared unfit if, through intent, carelessness or incompetence, they are guilty of misconduct, or neglect their duty to faithfully administrate the estate. This may be through:

• Causing unwarranted delay to the estate's administration;
• Failing to communicate with the named beneficiaries;
• Failing to account for the assets;
• Causing unreasonable delay to the transfer of entitlements.

An executor must also avoid acting for his or her own benefit. If an executor does this, a beneficiary should warn them (if the matter is not urgent). If the conduct is not addressed, the beneficiary should file an application with the Supreme Court for an order that they comply or an application for an order removing the executor altogether.

Courts Can Order Removal Of Executor

There are no fixed rules about the removal of an executor in WA, beyond the applicant proving that it is not in the best interests of the estate that the executor continue as the estate's personal representative.

Courts have the authority to remove an executor who is clearly unfit to act in the role. An application for the removal of an executor must be accompanied by an affidavit containing evidence showing that the estate's proper administration requires the removal of the executor, or establishing the benefit of replacing the executor.

Can A Beneficiary Sue An Executor?

If an executor causes undue delays or acts in such a way as to disadvantage a beneficiary, the beneficiary may commence court proceedings against the executor.

Case Study

In a 2021 Supreme Court case, O’Sullivan v O’Sullivan Executor of the Estate of JM O’Sullivan, the plaintiff sought for the executor of the estate to be removed. The defendant got a Grant of Probate but the Plaintiff, who was the deceased's other child, was not provided with a copy of the will or the Grant of Probate for a further nine months. The court allowed the plaintiff to lodge a Family Provision Claim out of time, but the executor refused to engage, failed to discharge his duties as executor, made threats to the plaintiff and threatened to destroy property of the estate. The court stated that this behaviour was “nothing short of reprehensible”, and found that the executor should be removed and replaced by the Public Trustee.

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