Removing an administrator or an executor in an estate is a serious step requiring the intervention and order of the Supreme Court.
Section 6 (1) of the Succession Act provides:
“6 Jurisdiction
(1) Subject to this Act, the court has jurisdiction in every respect as may be convenient to grant and revoke probate of the will or letters of administration of the estate of any deceased person, to hear and determine all testamentary matters and to hear and determine all matters relating to the estate and the administration of the estate of any deceased person; and has jurisdiction to make all such declarations and to make and enforce all such orders as may be necessary or convenient in every such respect.”
The guiding principles to remove an executor or administrator were noted by Williams J in Renton v Dresselhaus and Ors :
- The starting point is that the choice of the executor is that of the testator, which is honoured, unless there is good reason as to why the chosen executor should not continue.
- Misconduct by an executor will often justify removal but this is not a prerequisite to the exercise of jurisdiction.
- A conflict of interest between the executor and the other interested party is a relevant consideration, but the existence of a conflict may not be determinative. The relevant question is the extent of the conflict and its likely effect on the administration of the estate.
- Delay in the administration of the estate or a relationship breakdown between trustees and beneficiaries may warrant removal.
- The jurisdiction to remove a trustee must be exercised taking into account the interests of the beneficiaries, the security of the trust property and the efficient, faithful and satisfactory execution of the trust and power conferred on the trustees.
- The trustee’s choice as executor is to be given due weight but does not limit the jurisdiction.
- The ultimate concern is with the due and proper administration of the estate in the interests of the beneficiaries.
- In accordance with these principles, the court is to consider whether it is in the interests of the due and proper administration of the estate in the interests of the beneficiaries to remove the executors and appoint an independent administrator.
There are many reasons why such a step can and should be taken, however delays and conflicts of interest are common grounds.
Recent decision
In Stanton v Myrteza [2026] QSC 249,the court was asked by an applicant Eugenie Stanton (Applicant ) to remove Mr Myrteza (Respondent),her brother as administrator, and to revoke the grant of Letters of Administration to him of their parents intestate estates, and to appoint an independent Administrator in his place.
There was one major asset comprising a large block of land at Pallara in Queensland over which there were 3 leases. It was the Respondent’s dealings with this asset that proved to be the basis for his removal.
Conduct
Despite the fact that the land was owned by the deceased and the Respondent was nominated in the leases to be the personal representative, he asserted that he was the true lessor of each of the leases in his personal capacity and he was treating the leases including the rent being paid under them as his own assets and not assets of the estate. The evidence revealed that $131,439.70 was paid to the Respondent pursuant to one of the leases and he has appropriated that sum to himself.
Evidence from a real estate agent engaged by the Applicant valued the land at $6,000,000 to $6,500,000. However, the Respondent as personal representative of the estate had entered into a contract of sale, dated 2 May 2026, with respect to the property at a sale price of $1,700,000.There was evidence that it had never been publicly listed or advertised for sale. The purchaser was a company Vista Property and Development Pty Ltd (Vista).
The director of Vista, Mr Herrera was a co-director with the Respondent in a real estate agency some 20 years earlier. There was an initial refusal to provide a copy of the contract despite numerous requests through solicitors. The Applicant wisely had caveated the land.
There were also 3 significant debts, totalling around $103,000,that had not been paid.
The contract excluded the benefit of the leases. The contract asserted that the Respondent held the leases in his personal capacity and was personally entitled to receive the rent.
The Respondent opposed his removal and revocation of the Grant to him asserting the sale was arms-length and at a reasonable price having regard to various factors, including a resumption, flooding, cost of remediation from contaminated dumping, and damage to the dwelling requiring costly repairs. He raised issues on his sister’s alienation from their parents, and he also raised a proprietary estoppel argument claiming that his parents promised him the property, consistent with Albanian customary law.
Weighing up the evidence before him Smith J found that the Respondent has significant actual conflicts of interest concerning the substantial asset of the estate, and the correspondence from him demonstrated a strong risk of biased judgement. His approach was to reject outright, even the proposition that he has a conflict of interest and to reject that the applicant has arguable claims.
Smith J granted the application with the revocation of the grant to Mr Myrteza and found:
- Delay was the fault of the Respondent, not the Applicant
- Key documents (contract) were withheld despite request
- No reasonable steps to pay the debts the sale of the land was suspicious and there was a reasonable possibility it was worth $6M and not $1.7M
He was in a clear position of conflict with regard to the leases; to the sale of the property at a potential significant undervalue to a colleague and with regard to his allegations that he is entitled to all of the estate.
The court appointed an independent administrator with ancillary orders.
Summary
The case is yet another example of a dispute between family members as beneficiaries where one holds an appointment and was said to have acted in breach of his fiduciary duties.
Applications to remove executors or administrators is a complex task and sound evidence should be brought to establish good reasons to interfere with a testator’s choice. Misconduct, conflict of interest and delays are often good grounds for doing so.
If you are concerned about the conduct of an executor or administrator and require practical legal guidance, please contact Michael Sing, Partner at Rostron Carlyle Lawyers, on +61 7 3009 8444 or by email at m.sing@rclaw.com.au.
