By Mary-Ann de Mestre -
Snapshot
- Removal is protective, not punitive. The Court will give considerable weight to the testator’s choice of executor, but the ultimate inquiry is whether continuation in office jeopardises or prevents the due and proper administration of the estate.
- Conflict and family hostility do not, of themselves, justify removal. The critical issue is their practical effect: whether they produce deadlock, prevent investigation of estate claims, delay administration, expose assets to loss or otherwise impair the executor’s ability to perform the office.
- Executor selection should be treated as a risk-management decision. Solicitors should test proposed appointments against foreseeable conflicts, family dynamics, occupation of estate property, prior attorney transactions and the ability of co-executors to make decisions together, rather than treating executorship as an honour to be distributed equally among family members.
The selection of an executor is sometimes treated as a relatively straightforward part of the will-making process. A client identifies a trusted family member, perhaps appoints several children jointly in the interests of equality, and nominates substitutes in case the first choice cannot act. The cases concerning executor disputes suggest that practitioners should approach the appointment more critically. An executor is not merely the person trusted to implement the deceased’s wishes. The office is fiduciary and administrative. The executor may be required to identify and preserve assets, resolve liabilities, make difficult decisions concerning the sale of property, investigate transactions involving family members, respond to litigation and ultimately distribute the estate. Suitability therefore depends not only upon trustworthiness, but upon whether the proposed executor can perform those functions when interests diverge.
Many executor disputes do not begin with dishonesty or serious breach of duty. They arise because the executorial structure becomes difficult to operate: siblings cannot agree whether property should be sold; an executor-beneficiary occupies the deceased’s home; a surviving spouse and children from an earlier relationship have different economic interests; or an executor who acted as the deceased’s attorney must consider whether transactions undertaken during that appointment should be investigated.
