Executors behaving badly: can an executor be removed from their duties?

Written by Terry Johansson | 13th September 2013

It is the duty of the executor to carry out their duties with ‘due diligence’. This means that the executor must put the interests of the beneficiaries above their own, and they must not make a profit from their own position.  The executor must be sensible and reasonable when administering the Estate and account to the beneficiaries for all of the money and property that is being dealt with.

A beneficiary may be able to take action against the executor and have him / her removed from his / her position if the executor is not carrying out their duties or conducting themselves properly.

If you are the beneficiary or next of kin of the deceased and are unhappy with the conduct of the executor, you should firstly write to the executor asking for him / her to provide you with an account of the Estate. You will be able to see from this account where the Estate money has been distributed and how far the executor has progressed in the administration of the Estate.

If you are not satisfied with the response from the executor, or if the executor does not respond to you at all, you may be able to apply to the court for an order that the executor be removed from their role. You will need a solicitor to help you with this.

This is not a straightforward application to make. You will generally need to show that there has been serious misconduct on the part of the executor. Simply not liking or not getting along with the executor is not a sufficient reason to have the executor removed.

Generally, courts will only remove or substitute an executor if one of the following is proved:

a) The executor has been convicted of a crime and imprisoned since their appointment in the Will;
b) Due to a physical or mental disability, whether temporary or permanent, the executor is no longer capable of performing their duties. The disability must be preventing the executor from carrying out their duties; or
c) Due to a conflict of interest or serious misconduct, the executor is unsuitable for the role.

Examples of serious misconduct are stealing from the Estate, failing to keep accounting records, failing to comply with a court order, or wasting Estate monies or mismanaging the estate. Misconduct is not often easy to prove and may not always result in the removal of the executor.

An executor may also be removed if it would be in the interests for the proper administration of the Estate and for the welfare of the beneficiaries, eg: where relations and communications have broken down between the executor and beneficiaries to such an extent that it is no longer possible for the executor to administer the Estate properly.

An executor may be held personally liable if any loss loss results from a breach of their duty to administer the Estate properly and in accordance with the Will of the deceased.

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