When and why might the Court remove the executor of a deceased estate?
Wills and Estates: 06 September 2023
Author: James Penman - Our People
When and why might the Court remove the executor of a deceased estate? When does an executor’s ill health warrant their removal? Moore J considers these matters in the recent decision of Jedrzejewska v Sheedy [2023] VSC 511 (30 August 2023).
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The plaintiff (the deceased’s partner) alleged that the executor (the deceased’s brother) had neglected his duties as executor and that he was not fit to act as executor.
The Court noted that the executor had, among other things, not lodged an application for probate until nearly three years after the deceased’s passing and had failed to respond to requests from the plaintiff for information about the estate.
The Court reiterated that an executor has a duty to communicate with beneficiaries and respond to ‘reasonable inquiries for information’ about the estate’s assets and accounts (referring to the decision of Skaftouros v Dimos [2002] VSC, which goes into more detail about this duty).
The executor provided several reasons to explain his conduct; in particular, he referred to his poor health and alleged that the conduct of the solicitor he retained contributed towards the issues raised in the proceeding.
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The Court found that the executor had neglected his executorial duties to the extent that it warranted him being passed over as executor.
The Court also found that the executor was not fit to serve as executor due to his ill health, which would ‘impede his capacity to efficiently administer the estate.’
The Court also considered how the conduct of the solicitor retained by the executor had contributed towards the issues in the estate's administration, and made orders for the solicitor to attend before the Court to be heard as to whether he should be ordered to pay all or part of the parties' costs of the proceeding.