When will the Court remove an executor of a will?
If an executor (or administrator) is not acting promptly or is failing to perform their duties correctly, you can apply to the High Court to have them removed and someone else appointed in their place.
The Court has the power to remove and replace an executor if:
(a) they are unfit or incapable of carrying out the role; or
(b) it is otherwise “expedient” to remove them.
The Court can also remove an executor if they are absent from New Zealand for 12 months without leaving a lawful attorney, or if the executor him or herself asks to be removed.
In deciding whether to remove an executor, the Court will be guided by the following principles:
- The starting point is the Court’s duty to see estates properly administered.
- This jurisdiction involves a large discretion which is heavily fact-dependent. The Court will look carefully into the circumstances of the case.
- The wishes of the will-maker are to be given consideration and respect, and the courts will not readily replace an executor selected by a deceased to manage his or her estate. Ultimately, however, the key focus and question is as to what is expedient and in the best interests of the beneficiaries.
- The test is expedience, which is a lower threshold than necessity. The question is whether the removal of the executor will be a suitable, practical and efficient means of advancing the interests of the estate and its beneficiaries. Misconduct, breach of trust, dishonesty, or unfitness need not be established.
- Hostility or incompatibility as between executors and beneficiaries is not in and of itself a reason for removal, but hostility will assume relevance if and when it risks prejudicing the interests of the beneficiaries.
If the Court is satisfied with the evidence provided, it has the power under section 21 of the Administration Act 1969 to appoint a substitute executor or to terminate the appointment of an executor. Often a professional executor such as Public Trust or an independent solicitor is appointed to avoid the potential for further disputes.
Sometimes the terms of the will create a trust. For example, the will might say “I give $10,000 to my executor to hold upon trust for my daughter, Jane Smith, upon her attaining the age of 25.” If the rest of the administration of the estate is complete, the executor is usually deemed to have concluded their role as executor and to now hold the property on trust as trustee. Where the executor is in this position, an application to remove them should be made under the Trusts Act 2019 rather than under the Administration Act.
Note that if the executor is living in an estate-owned property or has permitted someone else to occupy the property, it will be necessary to seek a court order for vacant possession of the property in addition to the order for the removal of the executor.
Circumstances where executors have been removed
The Court has made orders removing executors in circumstances where:
- The executor had materially failed to discharge their duties over a significant period of time: Anderson v Ed Johnston & Co. Trustees [2018] NZHC 1122; Armstrong v Keenan & Keenan [2018] NZHC 1196.
- There had been significant and unjustifiable delays in completing the administration of the estate to the detriment of the beneficiaries: Harsant v Menzies [2012] NZHC 3390.
- The executor was no longer capable of properly administering the estate and carrying out the executor’s wishes: Allen v Morgan [2015] NZHC 1139, Holmes v Holmes [2015] NZHC 2576, and Nawisielski v Nawisielski [2014] NZHC 147.
- There was a risk that the terms of the will were not going to be properly given effect to: Farquhar v Nunns [2013] NZHC 1670.
- Disagreements between the executors were preventing the proper administration of the estate: Armstrong v Keenan & Keenan [2018] NZHC 1196; Hinde v Cranwell [2012] NZHC 63; Smith v Povey [2020] NZHC 805.
- The assets of the estate were likely to be eroded if the executor remained: Farquhar v Nunns [2013] NZHC 1670.
- The executor had a conflict of interest (they were themselves claiming against the estate) and there was reason to believe that they would not be able to discharge their duties: Moleta v Moleta [2020] NZHC 2680; Kang v Perpetual Trust Ltd [2023] NZHC 1501.
How much does it cost to remove an executor?
Applying to remove an executor can be an expensive process. It requires the applicant to put forward sufficient evidence to show why the executor should be removed. A simple uncontested application might cost in the vicinity of $10,000 to $20,000, whereas a complex, contested application could easily cost $50,000 or more.
Who pays the legal costs of removing an executor?
An executor who chooses to defend an application for their removal and is unsuccessful in doing so may be ordered to pay a contribution towards the applicant’s legal costs. Similarly, an applicant who is unsuccessful in their attempt to have the executor removed is likely to be ordered to pay a contribution towards the executor’s legal costs.
Preparation before applying to remove an executor
In the first instance, it is sensible to write to the executor requesting an account of the administration of the estate. It is worthwhile getting a lawyer to prepare and send this letter on your behalf, as the letter will have more force if it comes from a lawyer and because it (and any response) may be useful evidence in any subsequent court application to remove the executor.
If the response is not satisfactory, and you think that you have evidence of serious misbehaviour, the next step is make an application to the High Court to remove the executor and to have them replaced with someone else.
Executor removal case examples
The following are a sample of recent cases in which the Court has considered applications to remove an executor. While these cases provide a helpful guide as to the circumstances in which the Court may remove an executor, each case will turn on its own facts.
Jones v Jones [2023] NZHC 1408
Basil Jones appointed his wife, Laurel, and his two adult children, Cindy and Jason, as executors of his estate. Following Basil’s death, Laurel made claims against the estate under the Property (Relationships) Act and the Family Protection Act. She agreed to step down as an executor but argued that Cindy and Jason should also be removed.
The Court decided to replace all three executors with the Public Trust, subject to the Public Trust’s agreement to act. The decision was based on the following reasons:
- All three executors had failed to gather and secure the estate’s assets, particularly shares in the deceased’s company, which Cindy had transferred to herself instead of to all executors.
- Cindy and Jason’s unduly adversarial stance on Laurel’s relationship property claim conflicted with their duties to her as a Family Protection Act claimant. The Public Trust would adopt a more measured approach, benefiting all beneficiaries.
- Jason’s indefinite residence in Thailand raised doubts about his ability to take an active role in the administration of the estate.
Bateman v Whanga [2023] NZHC 2517
Rodney, the deceased’s son and appointed executor, was not a beneficiary of the estate. Despite repeated requests from the beneficiaries, Rodney failed to fulfil his duties as executor. He did not transfer properties into his name, gather the estate’s assets, maintain the house and land, or pay rates. Instead, he lived in the house rent-free, contributing nothing towards its upkeep, though he had paid some rent to the estate.
The beneficiaries had made multiple attempts, including family meetings and solicitors’ letters, to prompt Rodney into action. Eventually, they unanimously agreed to remove him as executor and appoint their sister in his place. Rodney defended his inaction by claiming that the will, which left everything to his sisters, was the result of undue influence.
The Court, on the application of the beneficiaries, removed Rodney as executor. The Court cited his failure to manage and distribute the estate’s assets, neglect of property maintenance, and the resulting prejudice to the beneficiaries’ interests. More than four years had passed since probate, with no progress made, and informal resolution seemed unlikely. Furthermore, Rodney had not taken any steps to legally challenge the will he claimed was influenced unduly. His conflict of interest (given that he challenged the validity of the will by which he gained his status as executor) and the hostility between him and the beneficiaries made him unfit to serve as executor.
Gamble v Schepens [2023] NZHC 3191
Three sisters, Deirdre, Deborah, and Hayley, applied to remove and replace the trustees of two trusts created by two wills. The trustees were their uncle, John, and Bruce. The trusts’ main asset was a farm in Waimatenui, Northland. Under the terms of the will, John was granted a life interest in the farm, with the property passing to the three sisters upon his death. Bruce wished to be discharged as a trustee, and the sisters argued that John should also be removed due to a conflict of interest and failure to perform his duties.
The Court found that the farm had declined in value under the trustees’ management due to inadequate farming practices. The dysfunctional relationship between John and Bruce exacerbated the situation. John, managing both the trust property and his adjacent farm as a single entity, had unilaterally made decisions without Bruce’s input, neglected the farm, and accrued significant debt to the estates.
The Court decided it was necessary and desirable to remove both trustees and appointed an independent solicitor-trustee to replace them.
Hennessy v Hennessy [2021] NZHC 1198
The Court removed an executor who had refused to distribute the estate between himself and his siblings because he did not agree with his father’s wishes, believing that his siblings should not receive anything. The executor had claimed that there were certain financial obligations that needed to be met by his siblings before the estate could be distributed, but he had taken no steps to address the matters that had been raised.
Smith v Smith [2021] NZHC 1042
An executor was removed who had not achieved anything in four years since the deceased’s death.
Roblin v Roblin [2019] NZHC 374
The Court removed an executor who had misconducted himself by failing for 17 months to progress the sale of estate property and by allowing people to occupy part of the property without charging rent.
Kellerman v Kellerman-Thornton [2020] NZHC 2297
An executor was removed who had charged expenses to the estate that had not been reasonably incurred, including business class airfares (economy would have been reasonable), expensive hotel accommodation (accommodation at a motel would have been reasonable), and charges for lunches and dinners (these are not a cost incurred in the execution of the estate and so are not recoverable by an executor). Read more about what expenses an executor can properly charge to an estate here.
Watson v Watson [2020] NZHC 2252
Executors were removed where they had not taken the required steps to administer the estate and had been absent from New Zealand for more than 12 months without appointing an attorney.
Lock v Weatherston [2020] NZHC 2246
An application to remove an executor was unsuccessful where an estate had already been fully distributed and the applicants could not show any useful purpose in having the executor removed. An order was made requiring the executor to provide extensive information about the estate and his administration of it.
Anderson v Little [2020] NZHC 1784
Where two executors could not agree as to how to administer their mother’s estate (one believed the estate’s property should be sold, while the other was of the view that it should be rented out), on the application of one of the co-executors the Court made an order removing them both and appointing Perpetual Guardian as an independent executor.
Finlay v Jensen [2020] NZHC 1211
Where one of two executors had been living in the estate’s property without paying market rent and had been refusing to cooperate with attempts to sell the property, the other executor was successful in having her removed. The Court considered the option of removing both of the executors and appointing an independent executor in their place, but was ultimately satisfied that this was unnecessary given that it was a relatively modest estate and there was no suggestion of any impropriety on behalf of the other co-executor.
Patten v Shepherd [2020] NZHC 1072
With the consent of all beneficiaries, the Court removed and replaced an executor who was suffering from dementia.
Smith v Povey [2020] NZHC 805
Where one of the executors was living in the estate’s property, had taken no steps to enable the sale of the property, and disagreed with the other executors over a number of issues relating to the property, the other executors successfully applied for her removal. The Court also made a separate order for vacant possession, requiring the executor to move out of the property.
Re Moreton [2019] NZHC 2013
Where the executors were unable to work together to such an extent that it had caused an inordinate delay in winding up the estate, including causing the property of the estate to remain vacant for three years, an order was made removing one of the executors to break the deadlock.
Panhuis v Cooke [2019] NZHC 563
Where one of the executors was residing in the estate’s property and had delayed the sale of the property, the court preferred to remove both of the executors and appoint an independent executor in their place. The court also made an order for vacant possession of the property.
Wilkins v Wilkins [2019] NZHC 458
Where the manner in which the estate had been administered involved the deterioration of the estate’s principal asset over a number of years, to the point that the bank that held security over the property was preparing to take enforcement action, the Court held that the executor had not taken the necessary steps to administer the estate and preserve its assets and removed the executor.
Jensen v Jensen [2019] NZHC 329
On the basis of a “letter of agreement” with the deceased permitting the executor to live in her property, the executor refused to move out of the house and allow it to be sold and divided between all of the deceased’s children in accordance with the terms of the will. The Court held that the agreement did not continue to apply following the will-maker’s death and removed the executor.
Hennessy v Hennessy [2018] NZHC 3119
While much of the delay in the administration of the estate had been caused by one executor’s conduct, the Court elected to remove all three executors and replace them with an independent executor. The Court found that the other executors had unilaterally made decisions regarding the estate and had withheld information from the problem executor, such that they had lost the appearance of impartiality.
Bird v Bird [2017] NZHC 1612
An executor was removed who had threatened to dock his siblings shares in the estate, made unsubstantiated claims of theft against his co-executor siblings, and intended to pursue expensive, fruitless litigation on behalf of the estate merely to give effect to a “wish” that the deceased had expressed in his will.
Re Estate of Haine [2017] NZHC 837
The Court removed an executor who had a conflict of interest with his role as the executor of another estate, as there was ongoing litigation between the two estates.
St Clair v Wright [2017] NZHC 494
The Court removed an executor who had not kept proper accounts and who had failed to provide the beneficiaries with “even elementary accounts or details”.
Frickleton v Frickleton [2016] NZCA 408
The deceased had appointed his son Carl as the sole executor of his estate. Another of the deceased’s sons, Mark, applied to have Carl removed as executor. The primary dispute between the brothers arose out of Carl’s decision to attempt to recover a debt allegedly owed to the estate by a company owned by Mark, in respect of which there were separate ongoing proceedings.
The Court of Appeal upheld the High Court’s decision not to remove Carl as an executor, holding that Carl was duty bound to seek to recover the debt owed to the estate by Mark’s company, including, if necessary, by issuing proceedings to recover the debt. The Court held that Carl was acting reasonably and impartially in bringing the claim and that he was otherwise administering the estate properly and effectively.
Vlaar v van der Lubbe [2016] NZHC 2398
An executor was removed who had refused to work constructively with his co-executor. The Court held that there was such a level of hostility and mistrust between the beneficiaries and the executor that it stood in the way of progressing the administration of the estate.
Bell v Bell [2016] NZHC 1589
Where there was a complete breakdown in the relationship between the executor and her co-executors preventing the progression of the administration of the estate, the Court made an order removing one of the executors.
Bupa Care Services NZ Ltd v Gillibrand [2013] NZHC 2086
Before passing away the deceased had resided in a Bupa rest home. Bupa was owed money by the estate. The main asset of the estate was a debt owed to the estate by the deceased’s son. The son, who was the executor of the estate, blamed Bupa for his father’s death. He refused to pay the debt due to Bupa on that basis.
The Court held that the executor was required to conduct a dispassionate review of information coming into his possession when determining if a claim against the estate should be accepted. It was clear that the executor was influenced in his decision-making by the desire not to pay any money out of the estate, which was halting the proper administration of the estate. The executor did not bring an independent mind to the question of whether the debt was valid. The Court accordingly made an order removing the executor.
Farquhar v Nunns [2013] NZHC 1670
The deceased had left his entire estate to his daughters, who were also the executors of his will. The deceased’s wife had brought a claim against the estate claiming an equitable or relationship property entitlement to land. The daughters opposed the wife’s claim and the wife applied to have the daughters removed as executors. The Court declined to remove the daughters as executors, stating that they had a duty to protect the assets of the estate, they were entitled to take a robust approach in defending the claim by the widow, and they had put forward cogent reasons why the claim was opposed. The Court rejected the widow’s claim that the daughters were exhibiting a degree of hostility towards her.
