An executor can be considered a trustee of the testator. After all, this person was appointed by the testator in the will to handle the estate. But what if the executor fails to perform his duties properly, late, or even refuses to perform them at all? In this blog, I explain what it takes to (have) an executor dismissed by the court. Please note that in this blog I assume Dutch law applies.
Duties of the executor
Pursuant to Article 4:144 paragraph 1 of the Dutch Civil Code, the task of the executor consists of three parts, namely:
(1) Manage the assets of the estate;
(2) Paying the debts of the estate to be paid during the administration from the aforementioned goods and;
(3) Performing testamentary burdens (if any).
It is possible that the duties referred to above have been limited or excluded by the testator in the will.
When does the executor’s task end?
It follows from Article 4:149 paragraph 1 of the Civil Code that in certain cases the task of the executor ends by operation of law (meaning: automatically by virtue of the law).
First, the executor’s task ends when one of the heirs accepts the estate on a no-fault basis, unless the executor can demonstrate that the assets of the estate are more than sufficient to pay all debts. This is also known as “an ample-amount declaration”.
A second ground is when the executor’s job ends because his work is complete. Previously, I mentioned exactly what the executor’s duties entail.
Who can ask for the executor’s resignation?
But what if the executor’s duties have not ended but you want to get rid of the executor? It must first be determined who can request this from the court.
According to Article 4:149 paragraph 2 of the Civil Code, a co-executor, an heir or the public prosecutor can request the dismissal of an executor. Another option is for the judge to dismiss the executor ex officio, i.e. on his own initiative by virtue of his office. Finally, the executor can ask the court for his own dismissal.
It follows from the above that a descendant who claims his so called “legitimate portion” cannot ask for the dismissal. Nor can a person who receives a bequest ask for it.
What is a reason for dismissal of the executor?
Precisely because the executor was appointed by the testator and can, in fact, be considered a fiduciary of the testator, it makes sense, that it is not possible to simply have the executor dismissed. After all, it was the testator’s wish to have his/her estate settled by the executor in question.
Article 4:149(2) shows that the dismissal of the executor can be requested “for weighty reasons”. What these may be, the law does not tell.
The Court of Appeal in Den Bosch in 2020 considered that the concept of “weighty reasons” must be assessed on the specific circumstances of the situation. Thus, the concept must be interpreted according to the particularities of the specific case. Some point of reference is provided by case law in this area. It should be emphasized that there is often a confluence of circumstances or combination of reasons present that makes a dismissal of the executor considered just.
Serious failure of the executor to perform his duties
Deficiency in the performance of duties can be a reason for dismissal. However, according to the Dutch parliamentary history, this must involve a serious deficiency.
For example, an executor who transfers funds from the estate to his own private account without a valid reason is in serious breach of duty according to the Court of Appeal of The Hague in 2019. However, the executor’s prolonged inaction and consequent failure to draw up a final estate description is also grounds for dismissal according to the Court of Appeal of Den Bosch November in 2006.
Serious distrust of the heirs in the executor
In addition to the legal duties mentioned above, according to the Den Bosch Court of Appeal in 2006, the executor has another duty, namely:
“Difficulties and frictions will, as [A.] notes, be encountered by the executor more often than not and there can be no ground for her dismissal therein. However, the court is of the opinion that it belongs to the executor’s duties to keep these aspects within such limits that settlement of the estate is possible within a foreseeable time.”
The Hague Court of Appeal in 2010 supplemented a few years later that this must involve a profound, not immediately removable distrust of the executor by the heirs. Importantly, this must involve concrete and objective facts. The latter must be substantiated with evidence in order for an application to dismiss an executor to have a chance of success. Thus, it may not only be about subjective experiences.
Recent lower case law is also in line with the above and thus confirms that an objective distrust of the executor by the heirs can be a ground for dismissal.
Conclusion
It follows from the above that there is no clear-cut answer as to what constitutes a valid reason for dismissing the executor. However, this should be justified on the basis of the circumstances of the case and with as many objective reasons as possible.
Personal advice needed?
Are you dealing with an unwilling or negligent executor, and would you like to know what the options are for dismissal? Please feel free to contact me to discuss what I can do for you.