When can an executor be passed over or removed?

There may be circumstances, where the executor's capacity and or their ability to administer the estate is in question. This may occur prior to an application being made for Probate of the Will or after Probate has been granted. In Victoria, the Court has both statutory and inherent power to pass over a named executor. The Court will not remove an executor chosen by a will maker without good cause. A few examples may be:

• the executor has committed a serious crime;
• the executor delayed or has not taken steps to obtain Probate of the Will;
• the executor has interfered with the estate;
• the executor has misappropriated assets of the estate;
• the executor is overseas for a prolonged period.
• the executor is in ill health.
• the executor does not have legal capacity and is not competent to deal with the estate.
• the executor is of unsound mind, or
• the executor cannot be located.

What is 'passing over'?

If an executor is 'passed over', they are not permitted by the Court to apply for and be granted probate of the will or if they have already been granted probate, they are removed as the executor. An application must be made to the Supreme Court and evidence must be provided to show why the executor should be passed over or removed.

Re Boglis [2022] VSC 309

The recent case of Re Boglis in the Victorian Supreme Court was an application to pass over an executor who had significantly delayed what should have been an uncomplicated administration of an estate. Aphrodite Boglis (deceased) died on 10 August 2020. The deceased was survived by her three adult sons. The deceased left a Will dated 18 April 2016 appointing two of her sons as executors of her estate. Following a series of delaying complications, one executor brought an action against the other to be passed over.

The deceased's estate

The estate comprised of the deceased's home in Murray Road, Preston (property) and less than $4,000 in the deceased's bank account. This is considered a straight forward estate administration.

The actions of delay

On 12 March 2021, the plaintiff executor made an application to the Court seeking that his brother, the co-executor either renounce probate or that he be passed. The application was supported by the plaintiff's affidavit. The plaintiff executor made a series of complaints against the defendant executor such as that he:

• unduly delayed making any application for a grant of probate by refusing to provide the necessary authority to release the will;
• acted improperly in relation to the property since the death of the deceased; and
• generally acted unreasonably in relation to the sale of the property.

Much of the plaintiff executor's complaints were in relation to the defendant executor's actions regarding the property, which the defendant executor and his two adult children were living in rent free. On 13 September 2021, (more than a year after their mother's death), the parties signed terms of settlement which required the defendant executor to vacate the property for it to be sold. A kerb side valuation provided by a real estate agent valued the property in the vicinity of $1.1 - $1.2 million. However, after a full inspection of the property, the real estate agent was forced to revise his valuation to an amount between $950,000 and $995,000. The property had been left in a 'filthy' state with rubbish both inside and outside the house. The unclean condition of the property, and resulting clean-up which cost the estate $3,250, further delayed settlement. The plaintiff executor argued that since the death of the deceased, the conduct of the defendant executor caused ongoing delay which was not in the interests of the beneficiaries and was inconsistent with the due and proper administration of the estate.

Conclusion

The Court noted that despite the deceased's estate comprising of only the property and a small amount of savings, the Court proceeding generated a multitude affidavits and caused substantial delay in the commencement of the administration of the estate, in what should have been an uncomplicated administration. The Court held that the defendant executor had caused great delay, and become combative in the administration of the estate. The Court further noted that the defendant executor had acted only in consideration of his own interests, in particular in not dealing with the clean-up and removal of rubbish before vacating the property. The Court concluded that were the defendant executor not to be passed over, it would be highly likely that the estate would continue to remain unadministered. Therefore, it was in the interests of the beneficiaries that the defendant executor be passed over so that the estate could be duly and properly administered.

Takeaways

Executors play an important role in administering a deceased's estate. Applications to pass over or remove an executor are not taken lightly by the Court and the Court will only make such an order if there is cause to do so. If you are experiencing difficulties with an executor and you think the legal executor is unfit to act, advice should be sought as soon as possible. ' Contact our experienced Wills & Estate team.

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~ with Philippa Thorne, Graduate at Law