Removing an Executor or Attorney

The Supreme Court is authorised to make orders removing the executor of a will, and so if you are concerned that an executor is mismanaging an estate then you may be able to seek their removal.  Whilst this is possible, the court does not lightly interfere with the appointment of an executor, given that the will maker (also known as a ‘testator’) has specifically nominated the executor, and presumably believed the executor to be worthy of being trusted to faithfully execute the will.

The overriding factor in removing an executor is whether the removal would be in the best interests of the estate and the beneficiaries.  How this is determined differs in each matter, involving the assessment of the executor’s conduct, the complexity of the will or estate, the behaviour of the parties, and the benefits or costs of removing the executor and appointing another person to administer the will and estate.

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The process for removal of an attorney under an enduring power of attorney often involves similar considerations, but differs greatly in procedure.  Removal of attorneys is generally via an application to the Queensland Civil and Administrative Tribunal (‘QCAT’), with the overriding determinative factor being whether the person with impaired capacity is being properly looked after by their attorney, and if not, QCAT can make orders such as removing an attorney, changing the terms of the attorney’s appointment, as well as orders for the appointment of a guardian and administrator to take over the duties of a removed attorney.

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If you believe an executor or attorney is failing in their duties to faithfully and properly manage the affairs of an estate of incapacitated person, please contact us for a free 15-minute telephone conversation regarding your circumstances and how we might be able to assist you.