January 19, 2017


When a man refused to comply with a court order about the division of a deceased estate, legal action was taken to have him removed as executor.

This type of scenario can be a huge issue for beneficiaries of deceased estates, especially when an executor isn’t doing the right thing. It can really help to know your legal rights and what can be done to fix the problem.


A man (the testator) had a will that provided for all three of his children. He later changed it so that his son was the executor and sole beneficiary of his estate. The daughters were disinherited. One of the daughters died and was survived by her only child.

The testator then died.

The surviving daughter and grandchild (the plaintiffs) took legal action, claiming they were entitled to a share of the estate.  They were represented by lawyers, and so was the son. They all agreed to settle the matter by a payment of $75,000 from the estate jointly to the plaintiffs. The parties signed a consent order that set out these terms.

The son failed to make the payment and so the plaintiffs took action to make him comply with the order.  The son then applied to set aside the order.

At that hearing, the son said that he had been coerced and blackmailed into agreeing to the order. But the Court found that he had signed the order after receiving legal advice and so would not set it aside.

The plaintiffs also applied to have him removed as executor. The Court found that the son had made it clear that he didn’t intend to comply with the order and was deliberately frustrating the process. It removed him as executor and replaced him with the Public Trustee.

The son appealed this decision. Even though there was a time limit of 21 days to appeal, the son filed his appeal 96 days late. He also appealed the Court’s refusal to set aside the consent order.


On appeal, the Court found that because the son had been removed as executor he had no standing to appeal against the consent order decision (because this was something that only the current executor could do).

He could only appeal the decision to remove him as executor but the time limit for doing so had expired. The son had legal representation when he had agreed to the order and so the Court considered that he was properly informed about what he was agreeing to. He had not provided any good reason for the delay and there was no evidence that he was coerced or blackmailed into agreement.

The Court also found that even if the son had applied within the time limit, he did not have the standing to make the application.

The Court dismissed the son’s appeal.

Executor’s duties

This case shows how difficult things can become when an executor isn’t properly carrying out their duties. It can be a stressful and traumatic experience for the beneficiaries of the estate.

In a nutshell, an executor is 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.

Other breaches of duty may include:

  • The executor taking too long to apply for a grant of probate.
  • The executor making decisions that don’t appear to be appropriate.
  • The executor fraudulently using estate funds for their own purposes.

What can be done?

If you have an interest in a deceased estate and believe that an executor is breaching their duty, it is very important that you seek legal advice as soon as possible.

We often receive enquiries from people who are frustrated because their executor is not communicating with them or failing to account for the assets of the estate. Sometimes, we can intervene on behalf of our beneficiary clients to ensure that the executor properly carries out the duties.

If that doesn’t work, we can make an application to the Supreme Court to either compel them to apply for a grant of Probate, account for the estate  or remove them as executor. The Court has complete discretion to exercise its power to do this and so the more evidence we can present to the Court, the stronger our case.

The decision to remove an executor is not taken lightly by the Court. Even if an executor is clearly incompetent the questions the Court will ask are:

  • What is in the best interests of the beneficiaries?
  • Will the estate be wasted if an executor is replaced?
  • Will the estate be wasted if the executor is allowed to remain?

If you are a beneficiary of a deceased estate and are concerned about the way it is being administered by the executor, Websters Lawyers can help. With a team of deceased estate specialists, we can provide you with all the assistance you need. Contact us today for a free first interview.

Zalfen v Gardner & Anor [2016] SASC 182 (2 December 2016)