Can you Remove a Court Appointed Executor of an Estate?

13 May, 2024 | Carolyn Ranson

Executors do not always properly discharge their duties and obligations in administering an estate. If you are concerned about the actions (or inaction) of an executor of an estate, you may be able to apply to the Court to remove them.

Applying to Remove an Executor

Courts will replace an executor if it is “expedient”, taking into account the practicality of doing so, and the interests of the beneficiaries. The wishes of the will maker will be considered. Grounds for replacing an executor include:

Fraud/Breach of Trust/Dishonesty

The Court may remove executors if there are concerns of fraud, breach of trust or dishonesty. Examples include an executor misusing the deceased’s funds or assets, or benefiting at the deceased’s expense before they died. In such situations, the Court may appoint an impartial executor to examine how the deceased’s assets have been managed.

Living Outside New Zealand

Where an executor is absent from New Zealand for 12 months without leaving someone in New Zealand to perform their functions, the Court may appoint a new executor.

Incapable or Unfit to Act

If an executor becomes incapable of acting (for example because of ill health) or is unfit to do so for any reason, the Court may remove them.

Conflicts of Interest

The Court may remove an executor if they find they have a conflict of interest. Conflicts of interest can arise in various ways, for example:

• when an executor makes a financial gain or obtains a personal benefit from a decision about the administration of the estate; or
• when an executor refuses to distribute the assets of the estate for reasons that benefit the executor.

Lack of Communication or Unwillingness to Cooperate by the Executor

Lack of communication or unwillingness to cooperate will not always lead the Court to remove an executor, but hostility or disagreement between an executor and beneficiaries (or some of the beneficiaries) may be a sufficient reason for removal. Similarly, if effective collaboration between the beneficiaries and the executor is not occurring but is nevertheless essential, the Court may consider this a relevant basis for removal of the executor.

Do you have concerns about the actions (or inactions) of a Court Appointed executor? For expert advice, contact a specialist estate litigation lawyers: Carolyn Ranson by calling +64 9 837 6840 or email carolyn.ranson@smithpartners.co.nz; or Vicki Poland by calling +64 9 837 6849 or email vicki.poland@smithpartners.co.nz