Removing Executors

William MacRae died in December 1991; probate of his will was duly granted to his wife Jean; she died in December 1997 and probate of her will was granted to their son plus a chartered accountant who also became the executors of both William and Jean’s estates.

The son was closely associated with his parents business affairs before they died and  various trustee or investment companies within the family.

The daughter was dissatisfied with the way in which the son was handling the estate and she seeks the following orders against him.

• The son be removed forthwith from his positions as executor and trustee of the estate of (a) William and (b) Jean.
• That there be an order for discovery made against both the son in his personal capacity, and the son and the accountant as executors.

The only way one can remove an executor is by revocation of the grant and the making of a fresh grant.

Even if an executor is removed there needs to be a consequential order which requires the filing of accounts, and deals with the transfer of the property from the old executor to the new executor.

A mere conflict of interest and duty will not result in restraint or removal of an executor. It must be shown that the executor prefers interest to duty, and intends to neglect their duty.

A Will maker in choosing the executor and knowing the relationship with the executor as to his own personal situation must appreciate that there will be a conflict between interest and duty.

The case that illustrates this concerned two brothers, Anthony and Samuel Hordern, operating a business in partnership. The partnership agreement provided that on the death of either, the other acted as sole executor, effected a valuation and paid out the deceased’s share as surviving partner. Thereafter he carried on the business on his own account.

Anthony died appointing Samuel his executor in the full knowledge that he would have to exercise the rights, and come under the obligations, stipulated in regard to the surviving partner by the Articles of Association.

Although there was a very real possibility of the surviving partner/executor taking advantage of the situation, the Court found that the method of valuation was an accurate method and the executor had not acted outside his duty. The idea that, in consequence of that possible conflict, Samuel’s duty was to decline the trust reposed in him by his brother is out of the question.’