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  The Criminal Executor 

More on Wills  Home Page

Replace the executor.

Where an executor has been misbehaving the beneficiaries can unite and replace the executor. The new executor can then sort things out. Read the Administration and Probate Act to find out how this can be done.

The Duties of an Executor

These duties are defined by legislation, the Administration and Probate Acts and Wills Act are the two relevant bits of legislation. This means there is law that courts will attempt to enforce. There are also procedures to be followed to get a matter before the courts. Basically a Judge needs to know what you want and why he should give it to you. It is up to you to attempt to have things put right, then to get the Registrar to write relevant letters and then, as a last resort, take the matter to court. Judges decision are supposed to be having the law applied to the facts. Facts are supplied to the court on affidavits with attachments to support what is said in affidavits. The attachments are not evidence, only the affidavit is evidence because it is sworn. Read the evidence Act to know more about what is and what is not evidence. Just attaching some document does not make what is in the document evidence. Quoting what is in the document in the affidavit is what makes what is quoted evidence.

The basics - to know more read the legislation.

Property can only be owned by legal entities, citizens, companies and corporations. Wills establish a trust when the person dies where the owner of the deceased person's property becomes the executor and the executor owns the property for the benefit of the beneficiaries in the will. This trust/will has to be proved to the court and this is called probate.

The Executor is placed into a position of trust and this means that the penalties that the executor can suffer from stealing property from the estate are much higher than would be suffered by just stealing. But there is a problem, the executor can not be charged with stealing from the estate because it is not a crime to steal something you already own and the executor owns the estate's property because he is executor.  Police will not and can not do anything about executors who steal from their estate.

How do you enforce the law?

The legislation requires that the executor performs certain functions and courts will order that the executor perform those functions. This is where reading the Administration and Probate Act is a must.

Executors must maintain accounts and those accounts must be made available to the beneficiaries when the beneficiaries ask for them. The first step is to ask for those accounts and if they are not forthcoming after a reasonable time period, usually 28 days then the second step is to advise the Registrar of the Court that you have sought the accounts and ask him to request for the court that the Executor supplies the accounts to the court.

If after 28days the executor has not done this, the next step is ask the court by way of an application under the Administration and Probate Act to make an order that the executor provide the accounts to the court. If the executor still does not do this then another application is required asking the Court to punish the executor for being in contempt of court. 

At the contempt of court stage in the process you can also ask a Judge to make an order that the Executor be removed and someone else be appointed executor. The new executor can then sue the old executor for the assets the old executor has and has taken from the estate. The new executor has full access to all bank accounts and can employ accountants to do a forensic investigation to find the assets.

The Act allows for criminal penalties and it is at this stage that those criminal penalties may be enforced, if they can be proven, if you can get the evidence.

Best of luck dealing with criminal Executors, the law is not very helpful in these matters.