What to do if an executor refuses to act: Perth

When a person makes a Will, he or she will often appoint a child, spouse or family member to be their executor.*

Lawyers Perth Estate Planning

Executor refuses to act

Sometimes, the estate is straightforward and the executor gets on with the job without too much fuss.

In other cases, the estate might be more complicated and the person nominated is simply not up to the task.

In other cases still, the executor may be doing everything they possibly can to frustrate the process causing distress and anxiety for the beneficiaries concerned and a breakdown in the family relationship.

Common complaints

If this sound like your situation, you are not alone. In recent times, rising real estate prices, increasing superannuation balances and changing family dynamics have led to a greater number of inheritance related disputes.

In our experience, the most common disputes involving executors include:

  • Complaint 1: The executor takes too long to administer the estate;
  • Complaint 2: The executor has a conflict of interest between their duty owed to the beneficiaries and their own personal interests;
  • Complaint 3: the executor fails to secure the estate property. In one such case, the deceased had owned a fresh food business, however, the executor failed to secure the store rooms causing a considerable loss of stock;
  • Complaint 4: The executor fails to keep proper accounts and to communicate with the beneficiaries;
  • Complaint 5: The executor/administrator fails to administer the estate according to the terms of the deceased’s will or the rules of intestacy.

Remedies

But what can a beneficiary do? The starting point is that an executor cannot hold the “estate to ransom.”

It is important to seek advice from the outset. A lawyer can advise you on whether you have any remedies available.

Usually, the first step would be to send a lawyer’s letter outlining the nature of the executor’s breach and putting the executor on notice that his or her conduct could be actionable in Court. Often, a letter of this kind, will be effective in getting the estate back on track.

However, if that step fails, then Court proceedings might be unavoidable.

In some cases, the Court may make an order removing a person as executor and appoint someone else. In other cases, the Court may grant an injunction or order compelling the executor to do, or refrain from doing, a particular act. The executor must then comply with the order; otherwise risk being in contempt of Court.

If you would like to discuss your particular situation, why not contact our Principal Vincent Holland.

*For simplicity, we use the term executor and administrator interchangeably, noting that they are both distinct roles.