How to remove difficult executors

12-11-2019

Jan Samuel Solicitor North Devon Executor Dispute

When drafting a will, you should  always be asked by your solicitor to choose an executor. In brief, an executor is someone who will handle your estate after you have passed away. The executor will have certain duties that they must carry out, such as ensuring that your assets are maintained in good order for the beneficiaries.

Executors can be anyone, however most people choose their close family or friends and it is advisable to pick more than one executor for practical reasons.

Issues can arise if executors fall out with each other, or if one of the executors refuses to follow the instructions left by the deceased in their will. In these circumstances the other executors may wish to have the executor removed from their position, however this is not always straightforward.

Under section 50 of the Administration of Justice Act 1985, the High Court has the power to appoint, substitute, or to remove executors. The court has the discretion to appoint a person to act as executor for the deceased in place of the existing executor, or, if there are two or more existing executors of the deceased, terminate the appointment of one or more, but not all, of those persons. 

The late Victorian case of Letterstedt v Broers [1884] set out the test that the High Court uses when considering whether or not to remove an executor:

"…if satisfied that the continuance of the trustee would prevent the trusts being properly executed, the trustee might be removed.  It must always be borne in mind that trustees exist for the benefit of those to whom the creator of the trust has given the trust estate"

There is not an exhaustive list of circumstances in which the High Court will remove an executor however common issues include:

  • Conflicts of interest;
  • One of the executors has a claim against the estate of the deceased which would remove money from the deceased’s estate and so could not act in the estate’s best interests (Heath v Heath 2018);
  • Misconduct; and
  • Animosity between executors. 

In one particular case where the executors had fallen our (Angus v Emmott 2010) - the executors were the deceased's lover, sister and her husband. The High Court decided “there is such a degree of animosity and distrust between the executors that due administration of the estate is unlikely to be achieved expeditiously in the interest of the beneficiaries unless some change is made.” Subsequently, all executors were removed and replaced.

It is important to note that because the High Court has discretion when deciding whether or not to remove an executor, not every instance of animosity or misconduct will result in an executor being removed.

Samuels Solicitors LLP, based in Barnstaple, North Devon, has an experienced and highly qualified team of wills and probate lawyers, ready to assist clients with a whole range of problems which can arise in relation to the administration of estates, or probate, as it is also commonly known.

We assist clients with drafting wills, going through probate procedures, setting up and administering trusts, preparing powers of attorney and dealing with disputes about inheritance and wills, which unfortunately are becoming more common, in part because of the number of unregulated will-writers setting up businesses.

If you are dealing with an estate and have fallen out with another executor, or if you have questions about the application of the new Regulations, contact us to discuss how we can help.

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