Can an Irresponsible Executor be Removed?

It is of paramount importance to beneficiaries of an estate that the executor respects the will and administers the estate accordingly in a fair and proper manner.

However, when an executor named in the will does not seem to respect the will, what can a beneficiary do?

In Li Chi Ping v Sin King [2023] HKCFI 1929, the Court replaced a named executor with an independent administrator.

Case Background

The late Mr. Wu Sau Lun (the “Deceased”) and Ms. Sin King (the “Mother”) were lawful husband and wife and had three children, including a daughter named Sau Yi (the “Daughter”).

On 10 March 2018, the Deceased passed away leaving a will in the possession of the Mother.  Pursuant to the will, both the Mother and the Daughter were appointed as co-executrices and the residuary estate worth about HK$15,800,000 would be distributed in equal shares to the Mother and the Daughter.

Since the death of the Deceased, the Mother had been hostile towards the Daughter and was unwilling to cooperate in dealing with the estate pursuant to the will.

When the Mother was asked about the whereabouts of the original will, she alleged that she had torn it up.

In May 2018, on the day before the burial ceremony, the Daughter mentioned to the Mother that the Deceased had left her some inheritance.  The Mother considered this as unfilial and was very angry.

On the day of the burial ceremony, the Mother burnt the original of the will without having kept a copy herself.

In June 2018, the Daughter invited the Mother to jointly apply for probate but the Mother did not respond.

Instead, the Mother unilaterally engaged a firm of solicitors to apply for grant.  Although the Mother possessed most of the information in relation to the Deceased’s assets, the Mother’s solicitors asked the Daughter’s solicitors to prepare the documents for a joint application for probate instead.  Due to delay caused by correspondence between the respective solicitors for the Mother and the Daughter as well as the subsequent outbreak of COVID-19, the intended joint application had never been made.

On 28 March 2022, the Daughter passed away leaving her lawful husband Li Chi Ping who then entered a Caveat in relation to the Deceased’s estate, requiring anyone applying for probate to notify him.  On 17 June 2022, the Mother applied for probate on her own and instigated this action.

The Court’s Ruling

Section 36 of the Probate and Administration Ordinance (Cap. 10) provides that (among others) the Court may replace an executor with another person as an administrator if it appears necessary or convenient to do so.  In considering whether to exercise such discretion, the Court will apply a common sense approach to assess the factual circumstances.

Upon considering the evidence, the Court held that it was in the best interest of the beneficiaries of the estate for the Mother to be passed over and for a solicitor to be appointed as an independent administrator.

The Court found that there was hostility and a lack of cooperation on the part of the Mother towards the Daughter.  While not accepting that the Mother burnt the will merely out of impulse, the Court suggested that her intention was to destroy the will as if the Deceased had never made it probably because she was not satisfied with the Daughter being appointed as a co-executrix and having equal entitlements as hers.

The Court remarked that the Mother was extremely irresponsible and caused delay and additional costs in the application for probate, contrary to her duty to act expeditiously.

Key Takeaway

Where there is distrust between the executors and the beneficiaries, as there often is, it may be possible to have an independent administrator appointed instead.  Although each case rests on its own facts, evidence of hostility and an uncooperative attitude may be an indication of the need of making such application.

To learn more about how you could handle a hostile situation in a probate context, it is advisable to seek legal advice at an early stage.

1200 675 Ince & Co
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