The executor of a Will is ultimately responsible for ensuring that the deceased’s estate is properly wound up and that the wishes in their Will are carried out.
To remove an appointed executor from a Will, the beneficiaries under the Will, together with any other interested parties, must be able to prove to the court that the executor is ‘unsuitable’ and/or ‘incapable’ of carrying out their duties.
Unsuitability
The court will only take into consideration a breakdown of a relationship between an executor and the beneficiaries, only in circumstances where it makes the take of the executor impossible.
Therefore in the context of unsuitability, to remove an executor evidence will need to be provided that the executor has acted unlawfully and/or in conflict with his duties under the Will. This can involve a range of issues that would be construed as misconduct, ranging from incompetence in the administration of the estate, misappropriation of assets, to acts of dishonesty.
The court does not necessarily need to determine wrongdoing or default on the part of the executor, the guiding principle of the court is to determine the suitability of an executor and whether the administration of the estate is being carried out properly.
Incapability
Such consideration in these circumstances relates to whether the executor is physically or mentally well enough to administer the estate. An executor may be incapable of carrying out their duties if they have suffered a physical or mental impairment. If in the circumstances an executor does not agree to step down, then legal action may be required to prove their impairment and the impact it has on their capacity as an executor.
