When an estate is administered by the executor/trustee a situation can arise where the beneficiaries lose confidence in the executor/trustee’s ability to administer the estate. They may believe that there has been an excessive delay, that they have not been kept informed or that there has been a misappropriation of funds.

 

The recourse available to beneficiaries to remove an executor/trustee is set out in the Trustee Act:

 

Removal of trustees on application

 

30   A trustee or receiver appointed by any court may be removed and a trustee, trustees or receiver substituted in place of him or her, at any time on application to the court by any trust beneficiary who is not under legal disability, with the consent and approval of a majority in interest and number of the trust beneficiaries who are also not under legal disability.

 

The case law indicates that the court will not lightly interfere with the testator’s choice of executor/trustee, there must be clear evidence for the removal to happen, and there must be no other course of action which would protect the beneficiaries.

 

Where delay is alleged the question becomes was the delay reasonable or unavoidable and even if it was avoidable is it now likely to be repeated. Also it is important to consider that if delay is the concern, once legal proceedings to remove the executor/trustee are commenced the administration of the estate will come to a grinding halt while a costly and lengthy legal process is pursued.

 

Deborah Todd Family Law Victoria

Deborah A. Todd