Under the Administration and Probate Act 1958 (as amended) a court may order the discharge or removal of an executor/administrator and also if the court thinks fit, may appoint a replacement administrator (a fit and proper person or trustee company) to continue the duties as legal personal representative of an estate.
Such removal or discharge of executor/administrator can occur in three cases:
- if the executor/administrator remains out of Victoria for more than two years;
- where the executor/administrator desires to be discharged from such office; or
- after a grant has been made, the executor/administrator refuses or is unfit to act or is incapable of acting.
Some examples of arguments to support applications for refusing, being unfit to act or incapable of acting are:
- conflict of interest between an executor’s own interest and that of the beneficiaries;
- executor having breached or neglected his/her duty;
- putting at risk estate assets by action or inaction;
- repeated failure to provide accounts and information;
- order of VCAT to appoint an administrator and guardian of an executor by reason of the incapacity.
Obviously each application for removal will depend on the facts and circumstances in an estate and oversights or simple mistakes ought not be grounds for removal.
Pearce Webster Dugdales are experienced in this area and are qualified to provide advice to you