What to do when: An executor refuses to co-operate

When a person dies with a will, those persons named as executors have the right to obtain a grant of probate of the deceased’s estate and administer the estate. Where a person dies without a will, a person entitled to receive part of the estate is entitled to administer the estate. It is common for one or more persons entitled to be an executor or administrator may renounce their right so that the grant is made to the other executors or administrators.

In some cases, one of the people entitled to be an executor or administrator do not want to take any action to obtain a grant from the court or refuse to engage in administering the estate after they have the grant, preventing the other executors or administrators from dealing with the estate. This article provides a short summary of the options available to the other executors or administrators where one executor or administrator refuses to renounce or participate.

1. Obtain a Grant of Probate without the Other Executor

Where 2 or more people are entitled to a grant of probate, but one has not renounced but does not want to apply to be executor, the other executors may apply for a grant of probate with leave for those who have not applied to later apply. The subsequent grant is known as a double grant of probate.

2. Issue a Citation

A person who is also named as executor, substitute executor or is entitled to apply for letters of administration may lodge a caveat and apply to the Court to issue a citation to the named executor or administrator requiring them to enter an appearance at the Court within 21 days.

If the person does not respond to the citation, then that is the equivalent of a renunciation and the grant of probate will be granted to the other executors without leave for the renouncing executor to apply.

The danger with this route is that a person issuing a citation impliedly accepts the executor’s competence to be executor.

3. Make an Application for Letters of Administration with the Will Attached

Where an executor is unknown, cannot be found or neglects to obtain probate within 2 months of the deceased’s death, any person interested in the estate may apply to the Court for a grant of letters of administration with the will annexed.

4. Executor Not Co-operating in Administration

After a grant of probate has been obtained, there may be circumstances in which the executor refuses to cooperate or their personal interests put them in a position of irreconcilable conflict. It is a serious matter to remove an executor and requires special or stringent grounds and needs to be necessary for the due and proper administration of the deceased’s estate. The dominant consideration will be the welfare of the beneficiaries.

It is not common for people to disagree and, if there was a poor relationship between executors, it is assumed the deceased was aware of this but still wanted those people to be joint executors.

For example, recently the Supreme Court removed an executor where the estate has a potential legal claim against the executor.

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