Removing an Executor from a Will in Queensland

In certain situations, the Supreme Court of Queensland has the authority to remove an executor named in a will. This power comes from specific sections of Queensland legislation: section 6 of the Succession Act 1981 and section 80 of the Trust Act 1973. The court’s discretion in these matters is considered “broadest in terms.” : Baldwin v Greenland [2007] 1 Qd R 117

The court’s primary concern when considering the removal of an executor is the due and proper administration of the estate. This means that an estate must be administered in a timely fashion and in accordance with the law and the instructions of the Testator.

 Here are some common reasons why a court might remove an executor:

  • Unreasonable delays in handling the estate’s affairs.
  • A conflict of interest exists between the executor’s duties and their own personal stake in the estate. Re McLennan [2018] QSC 124 [43]
  • Refusal to provide proper accounting to beneficiaries despite repeated requests. Newman and Predo [2022] QSC 170 [10]]
  • Actions contradicting the terms of the will.
  • Evidence of undue influence or unconscionable conduct.

Example: When Removal May Occur

Mary Thompson leaves her estate to her 4 children. The eldest daughter, Lily Thompson, is the executor of the Will. 

The beneficiaries are concerned about Lily’s handling of the estate.  Lily will not provide the beneficiaries with any information about the final balance in their mother’s bank accounts despite repeated requests. Lily is also making substantial purchases of assets that she ordinarily would not be able to afford during this period.  Further, Probate of the Will was granted by the Supreme Court of QLD 10 months prior and there is no reasonable explanation for the delay.

The above example raises issues of unacceptable delay, conflict of interest, and refusal to provide proper accounting. The beneficiaries would likely be successful in having Lily removed as executor should they apply to the Supreme Court.

Example: When Removal of the May Not Occur

Consider the estate of Michael Brown. Three executor of the Will is  the deceased friend David Miller. The beneficiaries are the deceased’s siblings, Emily Brown and Robert Brown. Emily and Robert have a strong dislike of David for personal reasons.  There is conflict between the parties.  Emily and Robert are contemplating having David removed as executor.

However, David has diligently fulfilled his duties according to the will and administered the estate in accordance with the will and in a timely fashion. He kept meticulous records, communicated openly with all beneficiaries, and displayed no signs of misconduct, dishonesty, or neglect.

The Court would likely dismiss any application to have David removed as executor as conflict and or personal animosity is not a sufficient reason to remove an executor.

Importantly, the key legal test in the removal of any executor is whether it is necessary for the due and proper administration of the estate.

Seeking Legal Advice

If you have concerns about the executor of a will and the administration of an estate, consulting with experienced legal professionals is highly recommended. Madsen Law possesses extensive experience in estate litigation, including matters related to executor removal. Our estate solicitors can provide the necessary guidance and support to navigate these complex situations. Please contact our office today to discuss your specific circumstances.

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