Rachel Shaw, solicitor specialising in disputing Wills, discusses the issue of removing an Executor.
Many people agree to undertake the role of an Executor for a family member or friend without fully understanding the extent of the remit and responsibility of the position.
Consequently, this can result in executors being negligent in their overriding duty to collect in the estate and administer it correctly in accordance with Section 25 of the Administration of Estates Act 1925.
Executors have a duty to act independently, to remain neutral should a will dispute arise, and act in the best interests of the estate, even if they are also beneficiaries themselves. Click here to read more about the roles and duties of an Executor in a previous article.
An Executor can renounce that role themselves before they have accepted it, but once they have commenced the practicalities of the estate’s administration, a Court Order will be required for their removal (whether sought by the Executor themselves of a third party, i.e. beneficiary) as they may be deemed to have intermeddled.
Where a third party is seeking the removal of an Executor, an application to the Court should always be considered as a last resort; we would always recommend that attempts are made to resolve the dispute whether through correspondence, negotiation, or mediation.
However, unfortunately there will be occasions when the only way of resolving the dispute will be by making an application to the Court for an executor to be removed.
You can make an application to remove an Executor either before a Grant of Probate has been issued or after. Generally, if such an application is made after the issue of a Grant of Probate, it would be made to the High Court under Section 50 of the Administration of Justice Act 1985. There is an alternative procedure under Section 116 of the Senior Courts Act 1981 which can be utilised when the executor has not been appointed under a Grant of Probate, and this application is made to the Probate Registry.
When making an application, one must be acute to the fact that a Court will generally not remove an Executor simply because there is ill-feeling between the executors and beneficiaries. The Court will only entertain such applications when the proper administration of the estate or the welfare of the beneficiaries is being adversely affected.
In summary, there must be clear and compelling reasons that would impede the effective administration of the estate and the welfare of the beneficiaries. Clear evidence of misconduct must be provided, especially in relation to financial matters, dishonesty, or lack of good faith.
When seeking advice on matters concerning contesting a Will or the administration of an estate, it is essential to seek expert legal advice and guidance from a solicitor that specialises in this niche area of law. You require a solicitor that deals with such matters each and every day, who has successfully deal with and concluded the issue you are facing, for other clients previously.
The contentious probate team at Holmes & Hills Solicitors can advise and assist you in relation to making such an application to remove an Executor or personal representative and we would recommend obtaining legal advice as soon as possible, particularly if you have concerns regarding any potential reduction in value of the estate.
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