![Professionally prepared Will and estate planning documents by Solomon Hollett Lawyers, showcasing secure legal documentation for Perth clients.]](https://solomonhollettlawyers.com.au/wp-content/uploads/2025/09/DSC_1425-1.jpg.webp)
There are no fixed rules for removing an executor in Western Australia, other than the requirement that an applicant must prove it is not in the best interests of the estate for the executor to continue as the personal representative.
The Supreme Court of WA has the authority to remove executors who are clearly unfit to act.
When can an executor be removed in WA?
Before probate is granted – “passing over”
- If an executor needs to be relieved of their duties before probate has been granted, they may be “passed over” under sections 74 or 75 of the Probate and Administration Act 1898.
- The first step is filing a passing over application with the Supreme Court, supported by evidence explaining why removal is necessary.
After probate is granted – formal removal
- If an executor must be removed after probate has been granted, the Grant of Probate must be revoked under section 40(C)(3) of the PAA.
- A fresh application must then be made by another person for a new Grant.
- Once a Grant has been issued, removal requires an order of the Court.
Why executors are removed – legal grounds in WA
The Administration Act 1903(WA) governs executor duties and removal procedures.
Grounds for removal
- Unfitness to act – where the executor cannot administer the estate in the beneficiaries’ best interests.
- Misconduct or negligence – such as:
- Causing unwarranted delay in administration
- Failing to communicate with beneficiaries
- Delaying transfer of entitlements
- Acting for personal benefit – executors must avoid conflicts of interest or self-benefit.
- Loss of capacity – where an executor is incapacitated or has behaved inappropriately.
How the removal process works in WA
Step 1: Evidence requirements
An application for the removal of an executor must include an affidavit proving that the proper administration of the estate requires the removal of the executor, or establishing the benefit of replacing the executor.
Step 2: Medical evidence (if applicable)
In the case of incapacity there will generally be a need for the submission of medical evidence to prove the incapacity of the executor.
Step 3: Court application
If the conduct is not addressed, the beneficiary should file an application with the Supreme Court for an order that they comply or an application for an order removing the executor altogether.
Step 4: Court considerations
In making its decision, the Court will consider what is necessary for the due and proper administration of the estate and also the interests of the estate’s beneficiaries.
Step 5: Temporary vs permanent removal
If the court is satisfied that the executor cannot perform their duties, it will appoint another person in the role. This may be done temporarily, if the court considers that the executor is only temporarily unable to perform their duties, or on a permanent basis.
Recent WA Case Example
O’Sullivan v O’Sullivan Executor of the Estate of JM O’Sullivan (2021)
The defendant got a Grant of Probate but the Plaintiff was not provided with a copy of the will or Grant of Probate for nine months. The executor refused to engage, failed to discharge his duties, made threats to the plaintiff and threatened to destroy property of the estate. The court found this behaviour “nothing short of reprehensible”, and removed the executor, replacing them with the Public Trustee.
Timeline considerations in WA
- Executor’s year – Generally speaking the Courts have determined that the executor has one year from the date of the deceased’s death (called “the executor’s year”) to finalise the administration of the estate and distribute it to the beneficiaries.
- Estate administration timeline – An uncomplicated estate generally takes 9 to 15 months to administer. The process will take longer if disputes or difficulties arise, such as disputes about assets or Court proceedings.
- Applications for delay – If a named executor does not apply for probate within 2 months from the death of the testator, or if the executor cannot be found, then the Administration Act allows for “any person interested” in the estate to apply to become an administrator in place of the named executor.
Voluntary resignation of executors
An executor can resign from the role voluntarily, but this can be a difficult process if the executor has already commenced undertaking the duties of executorship. Once an executor begins to act, they can only resign with the Supreme Court’s approval.
The Court’s approach in WA
- Reluctance to interfere
- 1.The Courts as a rule will not lightly interfere with a will maker’s discretion to appoint an executor of their choosing.
- 2. However, If there is ample evidence that an executor is not complying with their duties and their conduct is serious enough to warrant their removal as executor, the Court will disregard the will maker’s right to choose their executor to ensure that the interests of the beneficiaries are protected
- High threshold required
- 1. The courts will not remove an executor unless their conduct or incapacity is serious enough to warrant this. Courts generally try to avoid interfering in the will-maker’s choice of executor.
Who can apply for removal?
Interested parties, for example beneficiaries under the Will, can apply to the Court to have the executor passed over or removed.
Alternative options
- Public Trustee assistance – Beneficiaries or executors may request help from the Public Trustee.
- Warning process – In less urgent cases, beneficiaries should warn executors before going to court.
Key takeaways for WA
- High standard required – Executors are only removed if clearly unfit to act.
- Strong evidence needed – Applications must be supported by clear evidence.
- Consider alternatives first – Attempt warnings or communication before court.
- Act promptly – Timeliness is critical, particularly regarding the executor’s year.
- Get professional advice – The process is complex and requires legal support.
Protecting your right as a beneficiary
The removal of an executor in WA requires strong evidence and is only pursued when an executor’s conduct seriously undermines the administration of the estate.
At Solomon Hollett Lawyers, our estate administration lawyers in Perth advise both executors and beneficiaries when conflicts arise. If you believe an executor is failing in their duties, or if you are an executor facing pressure to step aside, we can guide you through the options and represent you in Court if necessary.
Book a confidential consultation with our team today.
