The appointment of an executor and trustee of a will is an important decision.  Where a person appointed as an executor and trustee fails to execute their duties properly while there are remedies available, these remedies are time consuming and not without expense.

One option where a trustee is refusing to act as a trustee and do what is required to administer the estate is to seek a court order to have the trustee removed in accordance with s. 21 of the Administration Act 1969.

Appropriate grounds for such orders would be that that the trustee:

• was refusing to participate in decision making
• had not participated in the administration of the trust
• was frustrating the administration of the trust
• was frustrating the beneficiaries’ interests in the estate.

To make such an order the court must be satisfied that any co-executors and co-trustees are rendered incapable of administering estate because of the other trustee’s refusal to participate.  It is not necessary to prove why, but it is necessary to proove the consequences of the action or inaction – for example the inability to administer the estate.

References:

• Gambrill & MacGinley as two of the three executors of the estate of Charles Barry Thursby Whitfield v Whitfield [2013] NZHC 885