REMOVING AN EXECUTOR/ADMINISTRATOR
The appointment of an executor or administrator by the court may be a relatively simple and easy process in Vanuatu, but once the appointment has been made it becomes very difficult to remove that executor or administrator once they have been put in place by the court. Therefore, any step by someone to remove that executor or administrator needs to be well considered as this can be a very time consuming and expensive process to the person seeking to remove the executor or administrator and may even mean further delaying a distribution of that estate to its heirs. This is not a process to be undertaken lightly as it will require strong enough proof and not the mere say-so of an individual or the disgruntled ramblings of an heir who feels he\she is not getting their way.
Power to remove executor/administrator
The power to remove an executor/administrator lies with the court and can be found at section 36 and 24 respectively of the Queen’s Regulation No. 7 of 1972 which provides:
36.The court may for any reason which appears to it to be sufficient, either upon the application of any person interested in the estate of any deceased person or of its own motion on the report of the Registrar and either before or after a grant of probate has been made …………… make an order removing any executor of the Will of such deceased person from office as executor and revoking any grant of probate already made ………..
- The court may, at any time, upon the application of any person interested in the estate or of its motion on the report of the Registrar –
- Revoke the administration already granted; …………………
Therefore, the court can either, of its own decision, remove an executor/administrator or else it can do so on an application made by an interested party.
How to go about removing the executor/administrator
If you are interested in removing the executor/administrator you would have to file an application with the court under the same case number as the original probate or letters of administration. That application would have to be accompanied with a sworn statement giving all your evidence as to why you believed the executor/administrator was “unfit” to continue in the role. You would have to serve a copy of that application on the executor/administrator and all other heirs. Once the application was filed the court would list it for a hearing where it would listen to all the evidence presented before making a decision. Depending on the complexity of the case the court might use that first hearing to give specific directions on the way forward, such as allowing the parties more time to put in evidence etc.
If you are an heir and beginning to have issues with the executor/administrator it would be a good idea to start to keep a detailed record of their wrong doings and gather as much documentary evidence as you could for the purpose of making your case. The more information you have and the stronger your evidence it will mean the best chance of winning and having the executor/administrator removed.
When would a court remove an executor/administrator
To remove an executor/administrator the court would look at their misconduct or neglect of duty to decide whether they were no longer fit to fill that role. Some of the instances of misconduct or neglect of duty would be:
- Excessive delay in paying off debts and distributing the remainder of the estate to the heirs without reasonable explanation;
- Failure to communicate with heirs;
- Failure to account for the assets of the estate;
- Stealing estate assets like land and registering it in their own name or selling land and using the money for their personal interest;
- Misrepresenting matters related to the estate to the beneficiaries;
- Using estate assets as security to take out mortgages for personal use;
- Taking land rents for personal use;
- Mismanagement of estate assets such as not paying property taxes, selling property when not necessary, allowing assets to deteriorate and thus lose its full value.
It does not matter whether the neglect of duty is as a result of carelessness, incompetence or intentional. The court’s interest is always to act in the interest of the beneficiaries and the preservation of the estate so as to allow for satisfactory and efficient distribution of the assets to the heirs.
REMEMBER:If you are an heir you have the right to ask the executor/administrator questions about your inheritance and demand that they do what they have been appointed to do and if they don’t DO NOTbe afraid to take the matter to the court to have them removed or to force them to do what they must do under the law.
DISCLAIMER – This is a legal column to provide basic information on the law and court procedure. It is not to be used as a substitute for legal advice but to be used only as a starting point in understanding what you might need and what you might need to do.
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