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QLD How to Remove Executor of Will for Fraud?

Discussion in 'Wills and Estate Planning Law Forum' started by Irene Taylor, 13 March 2016.

  1. Irene Taylor

    Irene Taylor Member

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  2. Sophea

    Sophea Well-Known Member

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    Hi Irene,

    If an executor has breached his or her duties, you can commence a legal action against them in the Supreme Court. Executors have a duty to preserve, protect and administer the estate diligently so if an estate is wasted as a result of deliberate or negligent acts on the executor's part this may amount to a breach. Where liable for breach of duty a misbehaving executor must make good any loss to the estate.

    A breach may occur where the executor/s:
    • misappropriates or uses an estate’s assets to pay personal liabilities or fraudulently disposes of them for a profit
    • fails to demand and enforce payment of a debt owed to an estate;
    • fails to observe the provisions or directions in a will;
    • makes a profit whilst acting in their capacity as executor;
    • makes unauthorised investments resulting in a loss;
    • Uses the estate to pay for personal debts.
    Beware though, a court will not take lightly an application to remove an executor, you would need to have clear an unequivocal evidence that he or she has committed fraud in connection with the estate. I would speak with an estate lawyer about your situation.

    Common Wills and Estates Administration Issues - Legal Blog - LawAnswers.com.au
     
  3. Irene Taylor

    Irene Taylor Member

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    Thanks Sophea.

    I should have mentioned that my Father is still alive and has dementia. His affairs are now being handled by the public guardian and public trustee as there was a hearing with QCAT and the outcome was that all EPOA's be revoked as the family were in conflict.

    The public trustee has access to all the info that points to my sister misappropriating my Fathers funds when he was in her care and acting as EPOA, and this is being investigated. So far there has been no word from their legal team to say that they have conclusive evidence that this has in fact happened. However, she is the executor of the will and, therefore, has the say on what happens to my Fathers body etc after he passes, and also everything else associated with being executor.

    From what I understand after he passes the public trustee and guardian will have no further say. If we have not received their evidence, then I'm assuming we have no way of removing her as executor. Would this be correct? If the findings do conclude that there has been fraudulent behaviour, is that enough to remove her as executor? Thank you again.
     
  4. Sophea

    Sophea Well-Known Member

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    Legislation in most states provides that an executor’s office may be terminated by the Court where the executor is unfit to act in such an office, amongst other reasons. The Court’s jurisdiction to do this can be enlivened by misconduct, and its goal is to protect the beneficiaries. In deciding whether to remove a trustee the Court takes into account a variety of considerations to determine how the beneficiaries will be affected by the executor.

    Therefore, if your father were to die and your sister was still appointed as executor, you could apply to the court for her removal based on the prior misconduct. Obviously having evidence and conclusive investigations by the public trustee would help in establishing this.

    I am not sure about the precise process for changing a will of a living person lacking capacity - i.e. changing the person appointed as executor.
     

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