Can you remove the executor?

Question:

My father passed away recently.

In his will he named a financial institution as the executor of his estate. It has now been months and the financial institution has made no progress with the administration of the estate.

I know an attorney that is willing to administer the estate for me, but the financial institution refuses to allow him to take over the executorship of the estate. Can I have the institution removed as the executor of the estate?

Answer:

It is possible to have an executor removed from an estate, but it should be noted that this can only be done by the Master of the High Court or a court of law, on the grounds listed in section 54 of the Administration of Estates Act 66 of 1965 (“the Act”). The Act governs the conduct of executors in deceased estates.

In considering the removal of an executor, our courts have pertinently held that an executor cannot be removed because of a mere hostility between the executor and other interested parties, but that an elevated standard would be required to be met before an executor may be removed.

This standard includes conduct such as dishonesty, gross inefficiency and untrustworthiness.

The court must be satisfied that it is undesirable for the executor to continue in his role.

In a recent court case where beneficiaries applied to court for the removal of an executor because of discontent with the conduct of the executor, our courts confirmed the position that mere unhappiness, and even inefficiency on the side of the executor, did not warrant the removal of the executor.

Our courts see such interference with the ma­nagement of a deceased’s estate in a serious light, particularly as such course of action would upset the deliberate selection by a deceased of the executor to carry out his or her wishes.

In the view of our courts, the Act provides for other remedies for beneficiaries other than having the executor removed from his office.

Such remedies include, for example, that the Master or another person (such as a beneficiary) can apply to court for an order directing the executor of an estate to perform his duty or comply with a demand or requirement of the Act. If necessary, the costs of such an application can be recovered from the executor personally.

Our advice would be to seek legal advice to help you evaluate the actions of the executor – which is a cause of concern – to help you determine the appropriate remedy to apply in your specific situation.
– Jaco van den Berg, candidate attorney, Phatshoane Henney Attorneys