Executors behaving badly – How to deal with difficult Executors and their solicitors

Executors have a unique and important role in the administration of a will-maker’s estate. Unique in the sense that they step into the shoes of the will-maker to give effect to their testamentary wishes, all whilst balancing the needs and demands of beneficiaries, debtors, people with an interest in, and/or contesting the estate. The importance of their role means that Executors owe to beneficiaries a fiduciary duty, and must always act impartially and in their best interests in making decisions about the administration of the estate.

Sometimes, regrettably, beneficiaries encounter difficulties with Executors (or their solicitors) in the administration process which can lead to frustrations, wastage of resources and a breakdown of relationships. This article examines different approaches to deal with those difficulties, some of which beneficiaries can undertake themselves without resorting to formal legal action, and others which take a more aggressive stance against the Executor and/or their solicitor. A good starting point, however, is an understanding of the Executor’s role, to which we first turn.

What are the basic duties of an Executor?

The Executor is responsible for carrying out the wishes of the testator (or will-maker) in accordance with the will, applying to probate the will, collecting assets, paying liabilities and of course, distributing the testator’s property to beneficiaries in a timely manner.

In effect, the Executor takes over the legal and financial affairs of the testator, and in doing so must keep accurate records and proper accounts, which may need to be produced on request.

The Executor is also tasked with resolving any arising legal questions and disputes. For example and if necessary, they must:

1. consider issues that may be relevant to the validity of the will, say in circumstances where the testator may have lacked testamentary capacity, or the will lacks certain execution formalities; or
2. assess the merits of, and resolve any claim on the estate, the most common of which is a family provision claim.

What are the basic duties of a solicitor acting for an Executor?

A solicitor acting for an Executor must advise the Executor in respect of the duties, responsibilities, and potential liabilities that attach to their executorship. In effect, the solicitor ‘protects’ the Executor, the estate and indirectly the beneficiaries by making sure everything is done properly and in accordance with the law.

One important aspect of their role is to ensure that the Executor does not distribute the estate assets before the statutory period for eligible applicants to seek further provision (in Victoria, that is a 6 month period from the grant of probate).¹ This is to ensure that the estate has sufficient assets to meet any meritorious claim. Of course, the solicitor will also play an important role in advising the Executor, and therefore the beneficiaries, in respect of any claims brought against the estate.

Importantly, a solicitor’s overarching duty is to the Court above all else, and they must ensure that in advising the Executor, they are not abusing the Court’s processes or misleading the Court.

What are the typical difficulties with Executors and solicitors?

Some of the more common difficulties which, in our experience, beneficiaries face with Executors and solicitors include:

1. Lack of communication.
2. Long periods of inactivity.
3. The Executor doesn’t take steps to investigate the actions of an Attorney prior to the will-maker’s death, particularly for any missing estate funds or questionable transactions.
4. The Executor may not be defending a challenge of the will aggressively enough;
5. Issues around conflict, in circumstances where the Executor intends to make a claim on the estate themselves. This must be carefully managed, and will usually necessitate separate legal representation for the Executor, in other words one law firm acting for the Executor in their capacity as Executor, and another acting for the Executor in their personal capacity as a claimant. This type of conflict does not necessarily warrant an Executor’s removal, if managed appropriately.²
6. The Executor prefers one beneficiary to another.
7. The Executor is not following the terms of the will.
8. Beneficiaries may not agree with the decisions of the Executor, for example in relation to the sale of an estate property.
9. Disagreements between Executors, which can make it difficult for the administration of the estate to be progressed.

The size of the estate, considerations of reputational damage, and timing are all considerations which will dictate the most appropriate way of dealing with these difficulties, whether it be a more ‘gentle’ approach to coax the Executor into action, or a more aggressive stance involving formal legal action.

For example, it may not be appropriate for a small estate that is nearing completion of its administration to resort to legal proceedings for the removal of the Executor. On the other hand, a large estate could potentially bear the cost of legal proceedings (particularly if they result in cost orders against the Executor personally) if it is mismanaged, resulting in material wastage of estate assets.

We consider each of these approaches in turn.

Option 1 – ‘The gentle approach’

This approach focuses the beneficiaries’ efforts on communication with the Executor, including to set out expectations and to set and agree upon clear deadlines for progress. We make the following suggestions for beneficiaries to manage better communication with Executors:

1. Express your concerns and set clear and reasonable deadlines for responses.
2. Request an inspection of accounts. This has been the subject of long running judicial consideration, with Courts taking different approaches as to beneficiaries’ entitlements to inspect accounts. However, the general rule is that beneficiaries will have a right to inspect estate accounts, and there may be recourse against Executors refusing to co-operate with reasonable requests for inspection by beneficiaries.³
3. Foster communication amongst the beneficiaries to agree on the disposition of the estate property, and inform the Executor. It may be more manageable for an Executor to act on a uniform agreement between beneficiaries, than to manage several separate/competing demands.
4. Request interim distribution payments, to keep the administration on track.
5. If you are dissatisfied with the defence provided by an Executor to a proceeding, seek to be independently represented in that litigation, provided of course that the estate is large enough to warrant another set of legal costs.
6. If the solicitor is not responding, the beneficiaries may consider collectively writing directly to the Executor to express their concerns and, if appropriate, foreshadow legal action against them personally (provided that they first put the solicitor on notice of their intention to do so).
7. Finally, if difficulties are apparent early on in the process, the beneficiaries may suggest that the Executor consider renouncing their executorship, to allow another person or trustee company to undertake the role in their place.

Option 2 – ‘See you in Court!’

If the more gentle approach outlined above is not effective to resolve any difficulties, beneficiaries may consider a more aggressive (but potentially costly) approach involving formal legal action against the Executor, and perhaps even the solicitor if warranted. Some examples of formal legal action include the following:

1. If the problem lies with the solicitor, beneficiaries can file a complaint against them with the relevant professional legal body. In Victoria, that is the Legal Services Board.
2. If the problem lies with the Executor, beneficiaries can apply to remove or replace that Executor if their ongoing involvement is not in the best interests of the estate. The particular criteria to support the removal of an Executor varies according to different state legislation, however, examples of conduct that may warrant an application for removal include the Executor:
   • remaining out of the jurisdiction for a protracted period;
   • desiring to be discharged from their role; or
   • refusing to act, or demonstrating an inability to effectively act in their role, after the grant of probate.

   In Re Howden; Howden v Rackstraw⁴, the Court asserted the importance for an Executor to carry out their executorial duties in a timely and efficient manner and deemed it reasonable for the beneficiary in that case, to have commenced the proceeding for removal of the Executor. The Court made the point that had the Executor provided the requested information, explained their delays and remedied their failure to call in the estate in a timely manner, the removal proceeding may not have been necessary.

3. Beneficiaries can apply to revoke probate and for a new grant to be made in favour of an independent person or trustee company.
4. Finally, another interested party can apply to the Court for Orders, amongst other things, directing the Executor to do or abstain from doing a particular act relating to the estate.

Concluding remarks

Dealing with difficult Executors (and their solicitors) can be a stressful exercise for beneficiaries, who may not have the time and resources to dedicate to this task. After all, that’s the job of the Executor – to manage any delays, difficulties and disputes, not to contribute to them.

It is always advisable for beneficiaries to seek independent legal advice in respect of the options available to them to manage these difficulties, whether via a more gentle or aggressive approach. It is often also helpful for beneficiaries to engage a solicitor early on in the process to manage a group of beneficiaries, which can make the job of dealing with the Executor easier and more cost-effective.

Please do not hesitate to contact the a Simon Crawford if you would like to discuss what practical options may be available to assist in managing a dispute or prosecuting a claim in a deceased estate matter.

This article was written by Simon Crawford, Partner, Angela Liaskos, Senior Associate and Jayden Vermeulen, Law Graduate.

¹ In the Australian Capital Territory, Victoria, South Australia, and Western Australia an application must be made within 6 months from the date the grant of probate or letters of administration was made; see Family Provision Act 1969 (ACT) s9, Administration and Probate Act 1958 (VIC) s99,  Inheritance (Family Provision) Act 1972 (SA) s8 and Family Provision Act 1972 (WA) s7(2)(a)
In the Northern Territory, the application must be made within 12 months of the date the grant of probate or letters of administration was made; see Family Provision Act 1970 (NT) s9(1).
In Queensland, the application must be made within 6 months from the date of the deceased’s death; see Succession Act 1981 (QLD) s33(2).
In New South Wales, the application must be made within 12 months from the date of the deceased’s death, see Succession Act 2006 (NSW) s58(2).
² In the recent case of Connock v Connock (in His Capacity as Executor of the Estate of Connock) [2021] VSC 64,  the Court dismissed the application for the Executor’s removal which allowed the Executor to continue in office whilst managing his competing conflicts, on the one hand as Executor, and on the other hand as a prosecuting claimant in a related estoppel proceeding against the estate
³ In Hartigan Nominees Pty td and Another v Rydge (1992) 29 NSWLR 405, the Court held that a trustee is not obliged to volunteer documents or information to beneficiaries, however, if a beneficiary requests it, a trustee is in general obliged to provide documents and information to the beneficiary, at the beneficiary’s cost, in relation to the trust property, and to provide an accounting in respect of the administration of it.
⁴ Re Howden; Howden v Rackstraw [2020] VSC 315 (VIC).