WHAT CAN YOU DO IF AN EXECUTOR ISN’T DOING THEIR JOB? – PART II

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In the first instalment of our series on duties of executors, we looked at the circumstances in which a single executor of a deceased estate could be removed. In this article, we discuss a case that dealt with an estate with two executors. When one executor frustrated the probate process, the Court was required to intervene.

Background

A man (the testator) made a will in 1991, leaving his estate to his sons in equal shares. He died in September 1999.

The two sons were executors of the testator’s estate and probate was granted in December 1999. Around this time, the sons’ relationship deteriorated.

Finalisation of the estate proceeded slowly and by 2014 – fifteen years later – there were still three properties that remained in the name of the testator and his wife (before his death, the testator had not registered his wife’s death on the property titles).

One son (the plaintiff) repeatedly requested the other son (the defendant) to sign documents so that the ownership of the properties could be transferred. The defendant refused to sign the documents and then disappeared – he moved from his address, left no forwarding address and couldn’t be contacted by phone or email.

Six months passed with no response from the defendant. The plaintiff then applied to the Court to have the defendant removed as executor of the estate on the grounds that the defendant had frustrated the probate process and could not be located. The defendant didn’t attend the hearing.

Executor duties

Executors are required to preserve, protect and administer a deceased estate. They must do so carefully and conscientiously. They must collect all the assets, pay the debts of the estate and sell or distribute the remaining assets in accordance with the testator’s wishes. They must do this competently and without unnecessary delay and they must effectively communicate with the beneficiaries and properly account for the assets of the estate.

If the estate is wasted because of the executor’s negligence or unnecessary delay, this is a breach of the executor’s duties.

Findings

The Court said that the removal of an executor shouldn’t be taken lightly and that the plaintiff had to show that the defendant was obstructing the proper administration of the estate.

Itsaid that it could revoke probate if it was in the interests of the estate that the executor be removed. There were nine grounds for revocation of probate:

  1. The executor is of bad character (for example, having committed a serious crime).
  2. The executor has neglected their duties.
  3. The executor has somehow interfered with the estate.
  4. The executor is overseas for a prolonged period.
  5. The executor is in ill health.
  6. The executor doesn’t have legal capacity (they aren’t competent to deal with the estate).
  7. The executor is of unsound mind.
  8. The executor has disappeared.
  9. The estate is insolvent.

The Court found that it had to consider the due and proper administration of the estate and the interests of all the beneficiaries. It said the due and proper administration had been frustrated by the defendant not cooperating and then disappearing. Both executors had to cooperate to finalise the estate and the defendant’s conduct had made this impossible.

The Court said that the testator’s intentions couldn’t be fulfilled while the estate was not finalised. The estate would be at risk of being sued or of incurring further expenses and other liabilities.

The Court revoked the grant of probate and issued a new grant of probate, with the plaintiff as the only executor.

What does it mean?

It’s important that executors are aware of their duties from the outset of the probate process and that the beneficiaries of the estate are also aware of those duties.

Regardless of whether you are an executor or a beneficiary of a deceased estate, if the conduct of another executor is causing concern, a little bit of legal advice can go a long way. An experienced estates lawyer can advise you about executor duties, provide an opinion about the conduct of the executor and also give you options about how to progress the situation. Resorting to legal action is not always necessary, but getting good legal advice as soon as possible almost always has a positive impact.

Websters Lawyers has a team of experienced wills and estate lawyers. Contact us today for a free first interview.

In the estate of Konstantinos Asimakopoulos (Deceased) [2016] SASC 109 (28 July 2016)

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