Creating a will is an important and foresightful act to ensures one’s assets are distributed according to their wishes after their passing. When a person drafts a will, selecting an executor is one of the most crucial decisions they make as this person or persons are entrusted with the responsibility of distributing assets to beneficiaries and ensuring a smooth transition of the estate. An executor is often a close family member, friend, or legal professional whom the testator deems trustworthy and reliable.
Life, however, is inherently unpredictable. An appointed executor’s ability to fulfil their role may be hindered by any number of circumstances, including their own passing or losing their legal capacity to carry out their duties. Under succession laws, where the executor is also a beneficiary of the will, they must survive 30 days after the passing of the testator in order to receive any disposition of property in the will.
These rare but not unheard of situations establish the wisdom of a testator appointing an alternative executor, who can carry out the original executor’s duties. If the alternative, or substitute executor is called on to act, they are bound by the same legal responsibilities and fiduciary duties as the original executor.
In some situations, however, where an executor is also the sole beneficiary, a clause in the will may provide for other beneficiaries to become executors in the event the original executor is unable to perform the role. But if the original executor remains alive they are unable to become executors. We’re look more at this situation and how alternative executors are appointed in this article.
Why appoint an alternative executor
Appointing an alternative executor has a number of advantages. Firstly, it acts as a safeguard, ensuring that the testator’s intentions are carried out in a timely manner when the appointed executor is unable to carry out their duties. Timely distribution of the estate is essential to meet legal obligations and provide beneficiaries with the resources they need, particularly once probate of the will has been granted.
Appointment of an alternative executor can also be important in preventing or mitigating legal challenges. In situations where the original executor faces legal disputes or is unable to perform their duties due to litigation, the alternative executor can step in and try to minimise the risk of contested probate.
There are also obvious disadvantages to the appointment of an alternative executor, including where there is disagreement or significant difference between the original and alternative executors on interpretation of the testator’s intentions. An alternative executor may also introduce more complexity in decision-making, particularly if there are differing perspectives on asset distribution or estate management. This potentially complicated situation underscores the importance of selecting individuals who share a common understanding of the testator’s wishes.
What to do when the original executor can’t perform the role
A person making a will is strongly advised to obtain written agreement from their nominees as executor before including them in the will, and also regularly check on them once named to ensure they are willing and able to administer the estate.
Many people will name more than one executor so that in cases where an executor dies before the will is administered, another executor assumes responsibility. If there is no ‘back-up’ executor named, an application may be made to the Supreme Court by another beneficiary or even a creditor to be appointed as administrator of the estate.
If an executor is unable to perform their duties for reasons including ill health, unsound mind or prolonged absence (among others), and no substitute executor is named, beneficiaries or other interested parties can apply to the Supreme Court to have the executor ‘passed over’ – meaning they are removed before they have the chance to act in the role.
The Court considers what is necessary for the due and proper administration of the estate and the interests of its beneficiaries. It will also consider whether the executor is temporarily or permanently incapacitated. A limited order may be made appointing someone to act on the executor’s behalf while they are incapacitated or, if the incapacity is permanent, appoint someone to take over permanently as executor.
Importance of appointing the right person as executor and regularly reviewing a will
The issues discussed in this article reinforce the importance of appointing a person who is willing and able to perform the duties of executor in your will. Equally important is regularly reviewing the document to ensure the appointment remains realistic and actionable. Spouses often appoint each other their executors (and sole beneficiaries) and then forget about the document. Years pass and the testator dies and the spouse is unable to perform the duties due to lack of capacity but no alternative executor was appointed. This situation can potentially lead to the testator’s wishes for their estate not being carried out.