Removing an executor after death

There are many reasons why you might wish to remove or substitute an executor named in your Will. And if you do, the process is very straightforward. You simply make a new Will or a Codicil to your existing Will. However, removing an executor after your death is often much more difficult.

Why should an executor be removed?

Sometimes, people with an interest in your estate – usually beneficiaries and/or fellow executors – conclude that a named executor cannot fully and properly carry out their duties and responsibilities. Often, the reason is poor health.

An executor may renounce their appointment (ie decline to act) as long as they have not ‘intermeddled’ in your estate. Intermeddling means handling estate assets or holding themselves out as an executor.

If an executor does not have capacity to renounce, other executors appointed in your Will may continue. However, they must provide evidence of their co-executor’s incapacity when applying for probate.

Problems can arise if the incapacitated executor is the sole executor appointed, for example, your spouse. The possibility of this situation arising is often catered for by including a substitute executor clause in your Will.

A more complicated scenario is a troublesome executor who is not carrying out their duties correctly.

Applying to the court to remove an executor

Executors have a duty of care to their co-executors, the estate’s beneficiaries, and sometimes to other parties. Accordingly, they must exercise reasonable care and skill in performing their role. And if they breach their duty of care, they are personally liable for any losses incurred.

Ultimately, there may be no other option than to apply to the court to remove an executor, but this should always be a last resort. Removing an executor is not a step the court takes lightly, as judges are keen to respect your wishes in appointing them. In most cases, the court will only remove an executor if:

• since their appointment they have disqualified themselves by being convicted of a crime and imprisoned; or
• they are incapable of performing their duties, typically because of temporary or permanent disability; or
• they are otherwise unsuitable for the role due to serious misconduct or a clear conflict of interest.

In a recent court decision (Hudman v Morris), the court removed both named executors from office and appointed an “independent administrator” to conclude the administration of the estate. The executors were two of five siblings, all five of whom were the beneficiaries of their late father’s estate. At trial, the judge found that the siblings were “completely estranged” and a “wholesale breakdown of relations” was such that the named executors could not be trusted to act fairly and impartially in the interests of all the beneficiaries.

This case highlights that litigation can prove difficult, time-consuming, and expensive, even if the issues are clear. If possible, other interested parties should first engage with the troublesome executor. Alternative dispute resolution methods such as mediation can prove very effective in helping parties reach an agreement. The Civil Mediation Council’s website includes a mediator search facility.