Executor disputes and removing executors from office

Contentious Probate Solicitor, Lee Dawkins takes a look at executor’s disputes and applications for the removal of an executor

We are regularly consulted by people who are involved in an Executorship dispute. More often than not, these disputes involve a Beneficiary who wishes to remove an Executor (or Administrator) from office.

Executors and Administrators (who are known as Personal Representatives or PR’s) are appointed to administer an estate. Executors are appointed by a Will while Administrators are appointed when there is no valid Will and the intestacy provisions apply.

Executors and Administrators have a duty to act mutually and in good faith, even when they themselves are Beneficiaries or related to a Beneficiary.

All too often Executors and Administrators abuse their position and ignore their legal obligations. This can prejudice the position of the beneficiaries and it is in these circumstances that we are asked to advise.

We are also consulted by Personal Representatives who feel that Beneficiaries are putting them under unreasonable pressure or asking them to act in a way that they are uncomfortable with.

Steps should always be taken to resolve Executor’s disputes at the outset by negotiation. A few well chosen words at the right time can save an awful lot of aggravation (and legal costs) in the long run. However, this does not always work, in which case it may be necessary to involve specialist Contentious Probate Solicitors like us.

Court proceedings are generally regarded as a last resort, so in most cases we would attempt to resolve the Executor’s dispute through correspondence. Where a Beneficiary believes that an Executor is behaving unreasonably we would write to that Executor seeking an assurance that the position will be remedied and the estate administered properly in accordance with the law. We would also point out to the Executor (or the Beneficiary, where appropriate,) the consequences of failing to cooperate. We explain that if Court proceedings are required then we would seek a Costs Order against them. Given that the costs of an application to remove an Executor can run to £10,000, or even more in some cases, this generally brings even the most recalcitrant party to their senses.

However, human nature being what it is, some people are oblivious to reason or logic. Where we are acting for the Beneficiary against the Executor an application can be made to the Court to substitute and remove a rogue Executor from office. The application to the Court is made under Section 50 of the Administration of Justice Act 1985. An alternative procedure under Section 116 of the Senior Courts Act 1981 can be used where the Executor has not yet been appointed under a Grant of Probate.

The Court will not remove an Executor or Administrator lightly. The grounds for removal must be sufficiently strong and compelling to justify a remedy being sought.

There have been a number of Court cases in which this issue has been considered. These give us some helpful guidance on what Judges are likely to do in particular circumstances. However, each case is different and heavily dependent on its own facts. We offer fee initial advice on all contentious probate matters and would recommend you seek initial advice before embarking upon this path.

What is clear from these previous Court decisions is that mere friction or hostility between the Personal Representatives and Beneficiaries is not in itself sufficient for reason for removal. The Court will look at whether the relationship is having an adverse affect on the proper administration of the estate and whether the welfare of Beneficiaries is being prejudiced.

Evidence of misconduct, particularly in relation to financial dealings, will strongly influence the outcome. PR’s have a fiduciary duty to the estate. In particular they must not act in such a way that they gain personal benefit or endanger trust property. Where there is dishonesty or a lack of good faith then the Court is likely to act.

Similarly, Executors can be removed where they have failed to progress the administration of the estate within a reasonable time and have caused undue delay.

As with most contentious and litigious disputes the costs of legal action must be weighed against the likely benefits. In some cases the parties will feel they have no option but to take action, in others, a careful consideration as to whether the potential legal costs are likely to be proportionate will be required.

We would recommend that anyone who is involved in an Executor dispute takes specialist legal advice from an expert in Contentious Probate Litigation.

We offer a free case assessment review and would be happy to consider the fact of your particular dispute before you commit yourself to incurring legal costs.

Call us on 08081391596 and one of our Specialist Lawyers with experience of handling Executorship disputes and applications to remove an executor from office will provide you with free initial advice.

Alternatively, you can email Lee Dawkins at lee.dawkins@sleeblackwell.co.uk