One of the most frequent instructions we receive is a request to remove an executor or executors from a will. This decision is arrived at for a variety of reasons but the most cited reason is based on a breakdown of trust between the executor and beneficiaries particularly where relations had soured even before the death of the testator or testatrix who made the will.
This often leads to a situation whereby the beneficiaries are concerned that the executor will not provide a full and proper account of their dealings with the estate or there is a real risk the Executor will dissipate the estate funds thus leaving the beneficiaries without their inheritance. We also see in practice a situation whereby relations between the executors themselves sour thus frustrating the administration process and preventing its proper conclusion with neither executor willing to renounce their role as executor.
Evidently, the first approach is always to seek a resolution between the beneficiaries and the executors since not only is this the most pragmatic and least costly option, but the protocols governing contentious probate disputes mandate that this approach is taken. Unfortunately, a resolution is not always achievable particularly where the executor refuses to engage and provide a full inventory concerning their dealings with the estate. This inevitably leads to legal action to remove the Executor formally.
The type of action required will depend on whether or not the Grant of Probate has already been obtained. In the event the action to remove an Executor is pre-grant, the application will be commenced in the Family Division to 'pass over' an Executor under the Senior Courts Act 1981 section 116, which provides:
(1) if by reason of any special circumstances it appears to the High Court to be necessary or expedient to appoint as administrator some person other than the person who, but for this section, would in accordance with probate rules have been entitled to the grant, the court may in its discretion appoint as administrator such person as it thinks expedient.
(2) Any grant of administration under this section may be limited in any way the court thinks fit."
In the event, an application is being made following the Grant of Probate having been obtained, this application will most often be made pursuant to Section 50 of the Administration of Justice Act 1985 which provides:-
(1) Where an application relating to the estate of a deceased person is made to the High Court under this subsection by or on behalf of a personal representative of the deceased or a beneficiary of the estate, the court may in its discretion:-
- appoint a personal representative of the deceased in place of
the existing personal representative or representatives of the
deceased of any of them
- If there are two or more existing personal representatives of the deceased terminate the appointment of more or more, but not all, of those persons."
The test for removal of trustees is found in the case of Letterstedt v Broers (1884) 9 App Cas 371, where it was held by Lord Blackburn that, 'trustees are to be removed if it is in the interests of the due administration of the trust.'
It is essential that advice is sought sooner rather than later since if a beneficiary has founded concerns in relation to the conduct of an executor and they fail to act promptly, it clearly poses the risk that any inheritance due to them may be dissipated. The first recourse of your legal representatives is usually to achieve a resolution and court action will only prove necessary in the event such resolution is unviable.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.