Lee Dawkins, a contentious probate Solicitor at our Taunton office, looks at Executors disputes and the steps that can be taken to remove an executor:
We are often consulted by beneficiaries who are in dispute with an executor and asked, ‘can I remove an executor from office?’
Before dealing with that question, we should start by explaining that an executor is someone appointed under a Will to administer a deceased person’s estate. The term ‘Administrator’ is used when there is no valid Will and the intestacy provisions apply. Executors and Administrators are known as Personal Representatives, or PRs. We will use the term executor to apply to both for the purposes of this article.
Most executors deal with the task honourably and in good faith. However, executors do occasionally abuse their position or act unreasonably, causing prejudice to the beneficiaries.
Court proceedings should be a last resort. We therefore tend to try to resolve things through correspondence in the first instance. We would remind the executor of his legal duties and obligations and advise him of the consequences of failing to cooperate. In particular, we explain that if Court proceedings are necessary then we will seek a Costs Order against him. The costs of an application to remove an Executor can amount to as much as £10,000, so this often brings even the most stubborn executor to his senses.
When an executor is unwilling to be reasonable an application can be made to the Court to remove him. The application is made under s50 of the Administration of Justice Act 1985. Section 116 of the Senior Courts Act 1981 can be used if the executor hasn’t yet been officially appointed.
The Court wont remove an Executor unless there are compelling reasons to do so.
Each case is different and we need to look at each one individually to assess whether there are likely to be sufficient grounds for the court to order removal.
It’s clear from previous court decisions that it isn’t enough simply to show that there is friction or hostility between the executor and the beneficiary. The Court will wish to consider whether the welfare of the beneficiaries is being prejudiced or if the relationship is having an adverse affect on the proper administration of the estate.
Evidence of improper conduct, particularly financial misconduct or dishonesty, will be taken into consideration, as will any conduct that has, or is likely to endanger trust property. Executors can also be removed where they have failed to administer the estate with due diligence or have been guilty of undue delay.
The costs of any legal action should always be weighed against the likely benefit, and an executorship dispute is no exception. It is particularly important to ensure that the legal costs are not likely to be disproportionate, which can be an issue in more modest estates.
If you are involved in an executorship dispute then call your local contentious probate experts for a free initial case assessment, on 01721 372128.