Unfit to Act – When can you get an executor removed?

When you make a Will, you appoint a person to deal with and administer your estate. This person is known as an executor. Sometimes people appoint more than one person, such as multiple adult children. Executors have many duties they need to uphold, and are charged with the responsibility of managing the estate of the deceased Will-maker and distributing the assets in accordance with the Will. They also often act as trustees of the estate, which is a slightly different but interwoven role.

Acting as an executor and trustee of an estate is not a role that should be taken lightly. It is very important to appoint people that you trust to do the job correctly and, where you appointment more than one person, that they will get along and work well together. Generally speaking, their basic duties for a deceased estate include the following –

(a) to manage funeral arrangements and pay the expenses;

(b) to pay other testamentary expenses and debts of the estate, including any tax;

(c) to identify the assets of the estate, and apply for a Grant of Probate (if needed);

(d) to administer the estate and/or trust fairly and effectively;

(e) to avoid conflicts of interest and act in the best interests of beneficiaries;

(f) to consider how powers and discretions will be exercised;

(g) to preserve, insure and invest any trust property; and

(h) to keep accounts and supply information to beneficiaries.

Where multiple executors are appointed and there is a dispute or disagreement between them, this can cause lengthy delays and unintended costs. If an executor breaches their obligations, it can potentially result in their removal and, at worst, personal liability and costs for them.

Case Summary: Jortikka v Haukka [2023] VSC 20

This case concerns the conduct and ultimate removal of a co-executor. The executors were sisters, being the daughters of the deceased. Their mother died in August 2017. The daughter who was removed was also living in the deceased’s property for 2 years and had insisted on the estate paying outgoings (e.g. rates) for the property.

She was found unfit to act the Court, emphasising that the paramount consideration is the welfare of the beneficiaries of the estate (i.e. the people who inherit) and her removal was in the best interests of the estate and beneficiaries. The Court stated at [46]- [48] as follows –

…the court book evidences Ms Haukka’s irresponsible and cavalier approach to her duties as executor, turning what should have been a straightforward administration of a simple estate into a protracted and complicated affair. More than five years has elapsed since the death of the deceased, and the administration of the estate has not been finalised….

Ms Haukka was clearly in a position of conflict of interest, and she was told as such, bluntly, by the estate’s solicitor. But the mere existence of a conflict of interest does not disqualify an executor. What matters is how they manage that conflict of interest. However, Ms Haukka’s conduct during the negotiation period, and her refusal to vacate the property until a court order was made to that effect indicated that she simply does not appreciate the duties and responsibilities of an executor.

The removed executor was ordered to pay costs for removal of her belongings from the estate property and their storage and for utilities during her occupation of the estate property. It was also ordered that land tax for the property should be paid from her share of the estate. The Court also ordered that the other sister and executor, who had been attempting to do everything right, would be awarded additional funds for her pains and troubles in acting in the role (known as executors commission). This is clearly an example of the idea that it pays to do the right thing.

If you require assistance with acting as an executor of an estate, or if you are a beneficiary or co-executor of an estate and have concerns about how an executor’s behaviour and conduct, you should seek legal advice. Our team of qualified estate lawyers at Chamberlains Law Firm can assist you with these issues to ensure that the estate is managed correctly.

Contact our Private Wealth Team for any queries regarding the removal of executors from a will.

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