Report No. 110

35.13. Section 222A (proposed)-Unfit executor.-

There is one new point requiring consideration. As the law in India stands at present, a person appointed executor in the will must be given the grant of probate (if he applies for it), irrespective of his personal unfitness for the position1. He can be removed only if, after commencing the administration of the affairs of the deceased, he commits breach of trust, waste or other default. This seems to be English law2 also. The question to be considered is whether this position requires modification in order to deal with certain special aspects.

In this context, we may refer to the suggestion that was made by one learned writer3 a few years ago. His suggestion is that while the court should ordinarily have regard to the wishes of the testator, it should have a judicial discretion to exclude, from acting as executor, persons who, on the face of it, are unfit even to begin to administer the affairs of the deceased testator. The court should not have to wait to see whether the persons so unfit in fact commit waste or breach of trust and then remove them.

1. Section 2(1).

2. R. v. Raines, (1698) 1 Ld Raym 361't 91 ER 1138; Halsbury's, 4th Edn., Vol. 17, para. 720, p. 381.

3. F.C. Hutley Reconstruction of the Law of Succession, (1973), Vol. 15, Journal of the Indian Law Institute, 420, 424.