Lucy McPherson, Estate Litigation Special Counsel at Attwood Marshall Lawyers, recently shared her expertise on the topic of the removal of executors at a Wills and Estates “Masterclass” for legal professionals, speaking about the roles of executors, where it can all go wrong, and how the court can become involved to remove them
Wills & Estates Online Masterclass – identifying an executor’s important role
On Wednesday 22 March 2023, Attwood Marshall Lawyers Special Counsel Lucy McPherson was invited to speak at a Television Education Network (TEN) online masterclass, presenting the topic “Disapproval and Removal: Showing Executors the Door”. Lucy presented to an online audience of more than 60 lawyers who virtually attended the session and took part in a panel question and answer discussion afterwards.
Lucy presented alongside other lawyers educating the industry on estate planning and estate administration topics, ranging from the pros and cons of “Mutual Wills” to holding trustees to account in discretionary decision-making.
As Special Counsel for Attwood Marshall Lawyers Estate Litigation team, Lucy has had significant experience dealing with disputes involving executors and beneficiaries.
Appointing an executor is perhaps one of a testator’s most important decisions when making a Will. Administering an estate can be onerous and time-consuming, which is why a testator needs to be satisfied their executor can carry out the tasks required in a timely and conscientious way.
If the executor proves not up to the job – or has engaged in unacceptable behaviour such as delaying the administration process to benefit themselves – an application can be made to the court to remove that person as executor.
Here are some key points from Lucy’s presentation:
Appointing an executor:
- It’s imperative to carefully consider the appointment of an executor when making a Will.
- It may be tempting to appoint multiple executors, which can promote accountability and impartiality. But executors must be able to work together while administering the estate. Disagreements between co-executors can be catastrophic for the estate.
- There are also risks to appointing family members and other interested parties to be executor. Sometimes, an independent executor will be a more suitable option.
Roles and responsibilities of executors and where it can all go wrong:
- Executors have broad obligations and duties towards beneficiaries of an estate.
- They are required to dispose of the deceased’s remains, attend to funeral arrangements, gather assets, pay any debts and then administer the estate of the deceased in accordance with the terms of the Will and the law.
- An executor must investigate, identify and call-in assets that may fall into the estate.
- They need to keep accounts and administer the estate without unreasonable delay, and promptly communicate with beneficiaries about their entitlements.
- If an executor fails to fulfil these tasks, they could be at risk of an allegation of breach of duty and subsequent removal.
What the courts will consider in a removal application:
- When applying to the court to have an executor removed, an applicant must prove that the executor is not performing their duties appropriately or are dragging out the process of administering the estate excessively, or found to be acting in their own best interests in conflict with what is best for the estate.
- The court will consider all circumstances, including, but not limited to, if there are strained family relationships contributing to delays and increased costs, or if there is a dispute between co-executors over the interpretation of the Will leading to a stalling of the administration of the estate.
- The court will assess whether an executor’s behaviour has been unacceptable.
- Every action will be measured against what is in the best interests of the estate.
- The key question for the court is: has the conduct of the executor placed the administration of the estate into jeopardy?
In summary, there are several reasons to remove an executor of an estate. However, the court will only do so if an executor has proved unable to perform the duties and the demands required of them and is no longer suitable for the role. Sometimes a court may encouragethe appointment of an independent administrator where there are disputes between executors.
In any case, it is always advisable to obtain independent legal advice from an experienced estate litigation lawyer if someone believes an executor is not doing what is in the best interests of the estate and the beneficiaries. Courts are usually reluctant to interfere with an executor appointed by the deceased, so it is important to obtain legal advice from experienced lawyers in this complex area.
Attwood Marshall Lawyers – Leading experts in Estate Litigation and Succession Law
Attwood Marshall Lawyers have one of the largest and most experienced Wills and Estates departments in the country, with dedicated teams who practice exclusively in estate litigation, estate administration, and estate planning.
It is important that when someone is writing their Will that they obtain trusted advice from a lawyer who has a comprehensive understanding of Succession Law. An experienced Wills and Estates lawyer can help testators make informed and considered decisions when appointing someone to take on the role of executor after they pass away. They will help their clients plan properly to mitigate the risk of disputes arising over the estate which will cause delay to the estate administration process.
In the unfortunate event that a dispute does arise, it is important to seek guidance from a skilled estate litigation lawyer to try to resolve the matter in the most effective way possible. Often people refer to the lawyer who drafted the Will to assist them with resolving estate disputes, however, estate litigation is an extremely complex area of law, and anyone involved in a dispute of this nature should seek advice from someone who knows what they are doing and specialises in this field.
Attwood Marshall Lawyers can provide expert advice to assist Executors, Administrators, and beneficiaries in resolving disputes as early as possible to try to avoid the need to go to court and costly litigation depreciating the value of the estate.
If you need advice or would like to find out more about Attwood Marshall Lawyers Wills and Estates and Estate Litigation services, please contact our Estate Litigation Department Manager, Amanda Heather, on direct line 07 5506 8245, email aheather@attwoodmarshall.com.au or free call 1800 621 071 at any time.
