Duties of executor

Each executor has the following duties:

1. locate the testator’s will and apply for a Grant of Probate;
2. gather and preserve the assets of the estate;
3. pay proper liabilities of the estate;
4. defend the estate in legal proceedings;
5. manage tax affairs; and
6. distribute assets to beneficiaries.

Non-performance of duties

Sometimes, there are instances where the executor fails to meet the obligations of properly administering the testator’s estate in the best interest of the beneficiaries. In these instances, a beneficiary can file an application with the Court to have an executor removed.

In NSW, the Supreme Court has an inherent power to revoke a Grant of Probate and issue a of a fresh grant of administration.

In Victoria, the Supreme Court has inherent power and power under s. 15 of the Administration and Probate Act 1958 (Vic) to pass over an executor.

Test

In both NSW and Victoria, the Supreme Court will only remove (or pass over) an executor in the event of there being evidence that he or she is unable to faithfully discharge their duties in the best interest of the beneficiaries.

Recent decision

Moore J was recently required to make a determination in respect of an application made by the beneficiary to have an executor removed in the matter of Jedrzejewska v Sheedy [2023] VSC 511.

Briefly the facts of the case were as follows:

1. The plaintiff was the domestic partner of the testator and the executor was the testator’s brother.
2. The testator died on 14 November 2018 and it took the executor approximately 3 years to make an application for Grant of Probate.
3. On 9 December 2021, the Registrar of Probate issued requisitions in relation to the testator’s will and the executor provided an unsatisfactory response on 5 October 2022.
4. Due to the unsatisfactory response, further requisitions were issued by the Registrar on 6 October 2022.
5. The plaintiff made allegations that the executor had neglected his duties as executor, he was not fit to serve in the office of executor because of ill health and he was not competent to take probate. In relation to the neglect of duties, the plaintiff said that the executor:
   1. showed unreasonable delay in applying for probate;
   2. failed to be respond to requisitions issued by the Registrar of Probates;
   3. did not respond to several requests for information about the estate from the plaintiff’s solicitor;
   4. did not take steps to pay the debts of the estate with reasonable diligence, or at all; and
   5. did not cooperate with the plaintiff and attempt to arrange a mediation.
6. The executor opposed the plaintiff’s application and provided evidence which addressed the delay to apply for probate (COVID-19, gathering the assets of the estate, obtaining medical records for the deceased and personal medical problems) and the fact that his solicitor failed to represent him properly.

General Principles & Outcome

When considering the case, His Honour considered the balancing test that is to “ … have regard to the due and proper administration of the estate and the interests of the parties beneficially entitled to it …”

Based on the evidence before the Court, His Honour ultimately decided that:

1. the executor did not properly discharge his duties due to:
   1. the delay in applying for probate;
   2. the failure to respond to requisitions;
   3. the failure to respond to requests for information;
   4. failure to pay the debts of the deceased’s estate; and
   5. failure in respect of conduct of the proceedings.
2. the executor was not excused by the fact that his solicitor failed to properly discharge his duties (which was also admitted by the solicitor).

When determining whether or not the solicitor shared any responsibility, His Honour said that:

1. although executors engage solicitors for advice and assistance, the responsibility for the actions (or inactions) remains with the executors; and
2. executors need to take immediate action when they have reasons to suspect that the respective solicitor is not suitable for the engagement.

Seek advice early

It is important that you seek advice early if you are an executor and want to make an application for Grant of Probate, require legal advice during the administration of the deceased’s estate to ensure that your duties as executor are discharged properly or are a beneficiary that is concerned with the manner in which the executor is performing his/her duties.

Delay of administration and breach of duties can result in criticisms and can also produce financial consequences.

Costin Stan at FCW Lawyers is a Contested Estate practitioner and is always willing to help you understand what your rights are and will always guide you to make the best decisions.