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1st April, 2022

Removing an Executor

‘Pet names’ and ‘Banter’ – no longer a joke

Problems can arise between co-executors, and executors and beneficiaries, for numerous reasons, some of which could include:

  • a long standing animosity between the relevant parties;
  • a historic appointment of an executor which does not reflect the current family and friendship dynamic;
  • an executor’s refusal to investigate relevant estate matters; or
  • plain belligerence!

What tools do parties have when dealing with difficult executors?

Well, the answer is many tools. However, they key is to effectively use those tools to achieve the desired outcome: normally, the effective administration of the estate, or ultimately, the difficult executor’s removal.

The first port of call is determine an executor’s duty, which can be broadly (and perhaps over simplistically) summarised as follows:

  • collect in the deceased’s assets and administer them in accordance with the terms of the will and law; and
  • when required, provide an inventory and account of the estate (i.e. list all assets, explain what has happened to them, where they are and what distributions have been made).

If an executor fails to undertake the above, they render themselves open to a claim for their removal. However, it is not quite as straight forward as that.

In order to provide the best chance of either compelling the estate to be correctly administered or to successfully remove the difficult executor, it is sensible to consider:

  • what steps need to be taken to administer the estate?
  • illustrate how and why the difficult executor will not properly undertake the required tasks to administer the estate;
  • why and how a claimant, or perhaps an independent third party, would better undertake the above tasks;
  • if a replacement professional independent third party executor is being proposed, an idea of their costs.; and
  • how do the proposed actions and remedy sought tie in with the deceased wishes, as well as the wishes of the affected beneficiaries.

Succinctly setting this out to a difficult executor ought to make them sit up and take the requisite steps. If they do not, then realistically, absent any compromise or agreement, which should always be explored, is to seek the court’s assistance.

What factors will the court consider when determining whether to remove a difficult executor?

While the below is not an exhaustive list, the courts will normally focus on:

  • the welfare of the beneficiaries, as opposed to fault, is normally the overriding factor;
  • however, fault which affects the effective administration of the estate could well lead to an executor’s removal;
  • respecting the deceased’s wishes as to the appointment of the executor is considered;
  • likewise, the wishes of the beneficiaries are equally considered, but are not the driving factor;
  • a breakdown of relationship, whether between co-executor, or executor and beneficiaries, is only relevant where it impacts on the effective administration of the estate; and
  • if a professional independent third party executor is proposed, the likely costs are taken into account.

What practical options does someone have when they are not satisfied with an executor?

Immediately

  • Invite them to renounce their executorship

This can be an attractive proposition, where negligible steps have been taken by the executor to administer the estate. It can be done quickly and cheaply. However, it is important to consider the suitability of who would next be entitled to apply for the grant of probate.

Professional executors should be wary to retain their executorship, especially where the estate is modest, could be administered by someone without the requisite legal experience and crucially, where the beneficiaries request they stand down. An unreasonable refusal to renounce could result in a significant costs order against the professional executor.

If that fails;

  • Show them the path

In essence, explain to the executor the steps they need to take to administer the estate, by reference to their failure to adhere to their duties. This should be set out, referencing the above factors which the court will consider, explaining how they will apply in the circumstances.

If it is possible to reach an agreement or compromise at this stage, it is sensible to consider, before costs increase and views become entrenched.

If that fails;

  • Seek their removal by court order

The last option. Having fully exhausted the above steps, the courts will appreciate that a claimant had no other option, thereby increasing not only the prospects of securing the remedy sought, but also the costs of the claim from the difficult executor.

If you find yourself in this situation, whether looking to remove an executor or defending a claim, it is helpful to seek specialist legal advice at an early stage, to give yourself the best prospects of successfully achieving your objectives.

 

Contact us for help and advice.



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