What can I do if the executor does the wrong thing?

What can I do if the executor does the wrong thing?

An executor’s duty is to preserve, protect and administer the estate of the deceased. A devastavit is a breach of the duty to preserve the assets of the estate and to administer the estate properly. Its is a duty owed to both creditors and to beneficiaries.[1] The mismanagement of an estate of the deceased amounts to a tort at common law.[2] A breach of trust will be amounted to where an estate has suffered from deliberate or negligent acts of the executor. For a breach of this duty, the representative must make good any loss to the estate.[3]

Common examples of executors in breach of trust include:

  • Conflict of interest: where the position of the beneficiary conflicts with the personal interests of the executor. This conflict will affect the efficient and satisfactory administration of the estate.[4]
  • Unreasonable delay: either deliberate delay or a lethargic approach to administration. This also includes a failure or refusal to provide information.[5]
  • Improper use of funds: using funds from the estate for unauthorised purposes.[6]
  • Personal hostility: where hostility grows between the executor and the beneficiary to the extend that it interferes with administration of the estate.[7]
  • Use of beneficiaries’ entitlements to bargain: for example, an executor seeking a release from a beneficiary before paying out their entitlements under the will.[8]

Not every breach of trust will lead to the removal of the executor; there needs to be some threat to the estate;[9] “You must find something which induces the Court to think either that the trust property will not be safe, or that the trust will not be properly executed in the interests of the beneficiaries.”[10]

In order to remove an executor, an application to the Court can be submitted by any person interested in the estate. The Court may revoke the appointment and effectively remove the executor of the estate.[11]

Where poor administration has resulted in loss to the estate, the equitable jurisdiction allows an order of accounts to be taken to claim in equity.[12] There are two types of account. Firstly, the account in the common form in which the executor must account for the money that they have received. Secondly, the less-used account on the basis of wilful default where the account must include both the money received and the money that would have been received if not for the executor’s wilful default. For the latter, it is appropriate where the executive has acted, and continues to act, in an uncooperative matter.[13]

[1] Re Tankard [1942] 1 Ch 69, 72.

[2] Tort law is an act or omission by a defendant constituting an infringement of a legally recognisable interest of the plaintiff that gives rise to legal remedy. A tortious claim acts to put the plaintiff back in the position or as close as possible to that position before the harm.

[3] Rosalind Croucher and Prue Vines, Succession: Family, Properties and Death: Text and Cases (LexisNexis, 4th ed, 2013) 780.

[4] Manocchio v Wilson [2012] VSC 76, 38.

[5] Carolyn Sparke, ‘Removing Executors and Trustees’ (2014) 20(10), Trusts & Trustees 1023, 1028.

[6] Ibid.

[7] Schavieren v Jones [2007] NSWSC 1429, 103.

[8] Above n 5, 1029.

[9] For example, assets need to be at risk.

[10] Warrington J in Re Wrightson [1908] 1 Ch 789, 803.

[11] Administration Act 1903 (WA) 29(1).

[12] A Court of Equity may offer alternative remedies.

[13] Above n 3, 782-3.

2020-04-28T01:40:26+00:00 April 9th, 2020|home page, Uncategorized|0 Comments