Choosing an executor is an important part of making a Will. While many people appoint a spouse, adult child or other trusted relative, problems can arise when executors disagree, personal interests conflict or the administration of the estate stalls.
The Supreme Court of NSW can remove an executor, but it will not do so simply because family members are unhappy with the person appointed.
When will the Court remove an executor?
The Court generally respects the deceased’s choice of executor. Removing that person is not intended to punish them for poor behaviour. The central question is whether their continued appointment places the proper administration of the estate at risk.
The Court may consider removing an executor where:
- co-executors are unable to make decisions together;
- estate assets are not being collected, protected or sold;
- the executor has failed to provide accounts or important records;
- unreasonable delay is causing loss or increasing costs;
- the executor has a serious conflict of interest; or
- hostility between family members has made the estate impossible to administer.
Each case depends on its circumstances. Evidence of unfinished tasks, unanswered requests, unsigned documents, accumulating expenses or assets at risk will usually be more important than general allegations that an executor is difficult or unfair.
Is a conflict of interest enough?
Not necessarily. Executors are often also beneficiaries, spouses, creditors or business associates of the deceased. The deceased may have known about that potential conflict when making the appointment.
A conflict becomes more serious when it prevents the executor from acting impartially. For example, an executor may need to decide whether the estate should:
- recover a debt owed by the executor;
- seek occupation rent because the executor is living in estate property;
- investigate transactions from which the executor benefited; or
- challenge actions taken while the executor held an enduring power of attorney for the deceased.
In The Estate of Max Hall [2025] NSWSC 1261, the Court considered conflicts involving occupation of estate property, pre-death expenditure and the allocation of expenses. The case reinforced that a conflict does not automatically disqualify an executor. Its practical effect on the administration is what matters.
What if co-executors cannot agree?
Appointing several children as joint executors may appear fair, but executors must be able to work together. A breakdown in their relationship can prevent property from being sold, documents from being signed and liabilities from being paid.
Court proceedings can also consume a significant part of the estate. Obtaining legal advice early may help the executors agree on a process before the dispute becomes entrenched.
Are there alternatives to removal?
Removal is not always the only or best solution. Depending on the circumstances, other options may include:
- mediation;
- orders requiring the production of accounts or records;
- directions for a particular administrative step;
- binding undertakings from the executor;
- judicial advice from the Court; or
- appointing an independent administrator for a specific dispute.
The appropriate option will depend on the work remaining, the value of the estate and whether the executor is likely to cooperate.
Choosing the right executor
An executor should be chosen for their ability to perform the role, not simply to avoid offending family members. Consider whether the person can manage financial and administrative responsibilities, communicate with beneficiaries and make impartial decisions.
Extra care may be needed for blended families, complex assets, family businesses or circumstances where disputes are already likely.
At The Law Office of Conrad Curry, our Wills and Estates team can advise on executor appointments, estate administration and disputes involving executors. Early advice can help protect estate assets and prevent unnecessary delay and expense.
If a dispute arises about the suitability of an executor appointed under a Will, our Wills and Estates team can advise on the available options and help determine the appropriate next steps. We have experience assisting co-executors in seeking the removal of an executor where serious conflicts of interest arise, including in circumstances involving allegations that the executor misappropriated or improperly used the deceased’s funds before their death for personal benefit.
DISCLAIMER
This article reflects the current law at the time of publication. Please note that cases may have been the subject to appeal or subsequent judicial consideration since the date of posting. The decisions referred to are summarised for general understanding only. It is intended for informational purposes only and does not constitute legal advice. For specific legal guidance in relation to your situation, please consult with a qualified legal professional.