What happens if the executor refuses to defend the Will?

An executor is a person or persons named in a Will by the testator who is appointed to carry out the wishes of the testator after their death. Executors are typically the closest family relative or a trustworthy person close to the testator, perhaps a lifelong friend. Sometimes a testator will appoint their solicitor or a specialist trustee company.

The role of the executor

The role of an executor is no easy feat, and a will-maker should give a great deal of consideration to who they appoint as executor. The role of an executor usually includes the following:

Defending a Will

If an eligible person makes a claim for a larger share in the estate assets or challenges the validity of the will, it is up to the executor of the estate to defend the will. As it is the executor’s duty to carry out the wishes of the deceased person, it is also their duty to defend the will from any challenges. Disputes in relation to an estate are extremely common and any executor should be prepared for this circumstance in case it does occur. The most common estate disputes are as follows:

  1. A claim by an eligible person seeking further provision from the estate;
  2. A will challenge based on testamentary capacity;
  3. A will challenge based on undue influence or suspicious circumstances.

When the executor will not or cannot defend the Will

If the appointed executor will not or cannot defend the will, a person with a particular interest in the estate (i.e. a beneficiary) can make an application to the court to replace the executor with an administrator or an estate trustee company.

Pursuant to s 34 of the Administration and Probate Act 1958 the court may order a discharge or removal of an executor or administration and replace that individual with a proper person or trustee company as administrator. The section outlines 3 reasons for removal and they are as follows:

  1. The executor or administrator remains out of Victoria for more than two years;
  2. The executor or administrator wants to be discharged from his appointment as executor or administrator; and
  3. The executor or administrator refuses or is unfit to act as appointed or is incapable of acting.

The courts have specifically declined to provide a substantive explanation of their power to remove an executor. However, previously cases before the court have seen the removal of an executor of reasons of delay or neglect, disputes between co-executors and a serious conflict of interest. The test applied to proceedings of this nature is that the court must be satisfied that it is necessary to remove an executor for the proper administration of the estate and the best interest of the beneficiaries.

Whether the executor’s refusal to defend a will is driven by unwillingness or genuine incapacity, the court can make an order to remove the executor. If the executor cannot defend the will due to personal circumstances, pursuant to s 34(1)(b) they can elect to be discharged from their appointment as executor by way of an application to the Supreme Court.

On the other hand, if an executor neglects his or her duty to defend the Will but will not voluntarily remove themself as the executor, as stated above, a person with interest can make an application to have them removed as executor.

In the case of Sharpe v Forbath [2000] VSC the court held that an executor who “sits idly by for an inordinate period of time without good cause” will be removed by way of an order from the court. In the case of Monty Financial Services Ltd v Delmo the court held that the reason or motive behind the neglect or delay is irrelevant. The point of concern in respect of the delay or neglect was the impact it has on the beneficiaries and the estate. The court made it clear that it does not matter if the negligence was deliberate or accidental.

If the application is successful, the court will appoint an independent person to administer the estate. Usually, a public trustee company or an independent solicitor is appointed.

Speak with an estate lawyer

If you believe you may have grounds to challenge a Will or if you think that you may find yourself in a Will Dispute, or needing to Defend a Will please do not hesitate to contact the team at Hentys Lawyers today.