In Victoria, an application can be made to the Supreme Court for the removal of an executor under s 34(1)(c) of the Administration and Probate Act 1958.
The court can remove the executor if, following an examination of the facts including a significant weighting to the testator’s intention to appoint the executor, the court is satisfied there is:
- undue delay in the administration of the estate; or
- a conflict of interest; or
- an unworkable relationship between co-executors;
that would lead to significant mischief or harm to the beneficiaries’ interests.
In Connock v Connock (in His Capacity as Executor of the Estate of Connock)  VSC 64 the plaintiff was the widow of the deceased. Both had previously been married and had children from these marriages. The plaintiff’s interest in the estate was limited to the assets of the deceased’s superannuation fund and proceeds from various bank accounts. The deceased’s will made no provision for the widow to take an interest in the residue of the estate.
The executor, the deceased’s child of the first marriage, commenced estoppel proceedings seeking a declaration that the plaintiff held the estate assets for her benefit and maintenance during her lifetime, but, on her death, for the benefit equally of the deceased’s children – one of whom was the executor.
The plaintiff claimed and the court accepted that the executor had a conflict of interest between the executor’s duties and his personal interest in the outcome of the estoppel proceeding, but that this conflict did not warrant the removal of the executor. The court held that, although the executor is in a position of conflict, in the circumstances the welfare of the beneficiaries of the estate did not warrant his removal.
The new form content precedents added to the Probate and Letters of Administration publications are:
- Originating motion to remove and replace executor;
- Originating motion to remove and replace trustee;
- Originating motion to remove and replace executor and trustee.