Removal of executors is a drastic step to take, but sometimes there is no other option, writes contentious probate partner, Naomi Ireson.
While most executors perform their duties diligently and in good faith, there are some who act in a cavalier fashion, refusing to comply with their duties or act reasonably. In some cases executors even abuse their position for personal financial gain.
This type of conduct can be highly prejudicial to the estate and beneficiaries. It can also lead to financial losses being incurred and increase the legal costs of the administration.
When executor disputes arise steps should be taken to reach a negotiated settlement. In some cases the involvement of solicitors or even an independent professional mediator can help resolve the issues. Court proceedings should usually be the last resort. Executors should be reminded of their legal duties and obligations and told what the consequences of failing to cooperate are likely to be. They need to understand that if court proceedings do become necessary then they may be required to pay all of the legal costs personally. Removal of executors can be very expensive, so the thought of being held liable to pay themoften causes uncooperative executors to behave more reasonably.
However, from time to time we encounter executors with whom no sensible dialogue can be established. Others simply refuse to adopt a reasonable stance, making it impossible to resolve the dispute informally. In these instances an application to the court to remove the executor is often the only way of overcoming the impasse.
Applications are usually made under section 50 of the Administration of Justice Act 1985. Where probate has not yet been granted an application under section 116 of the Senior Courts Act 1981 can be used to ‘pass over’ the executor.
Judges will not grant an order to remove an executor lightly. The courts will require a compelling case to be made for the executor’s removal. This usually involves providing evidence that unless the executor is removed it will have a negative impact on the welfare of the beneficiaries, or have an adverse effect on the proper administration of the estate. This includes financial misconduct, dishonesty, excessive delay, and any conduct endangering trust property.
It is usually not enough to base an application merely on the existence of friction or hostility between the parties.
Given the legal costs that can arise and the risk of personal liability for those costs, it is important that parties to a dispute obtain legal guidance from experienced contentious probate solicitors who are experts in this field.
If you need further guidance on removal of executors or would like our specialists to assess your case on a free of charge basis, then contact our legal helpline. Call 0333 888 0404 or email us at [email protected]
