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In Western Australia, an executor may be removed where an applicant proves it is not in the best interests of the estate or the beneficiaries for the executor to continue.
The Supreme Court of WA has the authority to remove executors where the due and proper administration of an estate has been put in jeopardy or prevented by an executor.
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 Order 73 of the Rules of the Supreme Court 1971 (WA).
- 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 – revoking a grant
- Once a Grant has been issued, removal requires an order of the Court.
- The court has the power to revoke a Grant of Probate under section 18 of the Supreme Court Act 1935 (WA).
Why executors are removed – legal grounds in WA
There are a number of circumstances where a court may intervene and remove an executor. Importantly, courts will not take this step lightly and will only remove an executor where their conduct or incapacity is sufficiently serious to warrant their removal.
Grounds for removal
- Unfitness to act – where the executor cannot properly administer the estate in the beneficiaries’ best interests.
- Misconduct or negligence – such as:
- Causing inordinate delay in administration
- Persistent failure to communicate with beneficiaries
- Unwarranted delays in transfer of entitlements
- Impartiality – executors must act impartially and avoid conflicts of interest. If an executor is incapable of objectively and dispassionately carrying out the role or is acting for personal benefit, they’re at risk of removal.
- Conflict between executors – where there is more than one executor and the relationship between them has deteriorated to the point where they cannot work together.
- Loss of capacity – where an executor is incapacitated or is mentally or physically unable to perform their duties as executor.
- Absence or unavailability – an executor who is absent from the jurisdiction or cannot be located may be passed over.
The Court’s approach in WA
- The court will not lightly interfere with a will maker’s choice of executor. The appointment of executor is presumed to reflect a will-maker’s trust and confidence in that person to have been suitable and capable of performing the duties required.
- However, if there is sufficient evidence that an executor is not complying with their duties and their conduct is serious enough to warrant their removal, the court will intervene to ensure that the estate is administered properly in the best interests of the beneficiaries.
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.
How the removal process works in WA
Step 1: Court application
If communication with an executor has failed to address concerns, a person can file an application with the Supreme Court for an order seeking the executor’s passing over or removal.
Step 2: Evidence requirements
An application for the removal of an executor must set out that the proper administration of the estate requires the removal of the executor. There is a high threshold for removal so strong evidence is key.
Step 3: 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 4: Removal and appointment of alternative
If the court is satisfied that the executor cannot perform their duties, it will appoint another person in the role. This may be an independent person, such as a lawyer or accountant, or a beneficiary of the estate.
Recent WA Case Example
O’Sullivan v O’Sullivan (Executor of the Estate of JM O’Sullivan) [2021] WASC 168
The defendant received 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 with the plaintiff, 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.
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.
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.
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 jeopardises the administration of the estate.
At Solomon Hollett Lawyers, our estate litigation 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.
