How to remove an executor of a will

An application to remove an Executor can be made to the Court under S.50 of the Administration of Justice Act 1985, alternatively you can ask the Court to make an order that the Executor be passed over pursuant to S.116 of the Senior Courts Act 1985

Pursuant to the legislation mentioned above an Executor can be removed by the Court or passed over. Before one entertains making an application to remove an Executor or alternatively considers defending such an application they should seek legal advice as these applications can have significant cost consequences. 

Where an executor is appointed by a Will they are able to renounce the position before they have accepted it. However once accepted an order of the Court will be required if they are to be removed.

If a beneficiary believes that an estate is not being properly administered, then it is possible for them to apply to the court to substitute or remove an executor. As a general rule Courts will only remove an executor if there is evidence of the following:

 

  • The executor has been disqualified since the deceased appointed them, ie has been convicted of a crime and sent to prison.
  • The executor is incapable of performing their duties, eg has a mental or physical disability, whether permanent or temporary, which is preventing the executor from performing his/her duties.
  • The executor is unsuitable for the position for example when there is serious misconduct or a conflict of interest. Generally speaking, this could involve stealing from the estate or failing to comply with a Court order. For more information about removing an Executor read our Q&A which responds to our most common queries by clicking the link https://www.clodes-solicitors.com/removing-an-executor-and-the-relevant-legal-principles/  

Steps to take

Court proceedings should always be a last resort. As such, if you are concerned that an executor is not acting in accordance with their responsibilities in the first instance you should have a solicitor write to them asking them to explain their actions and set out your position. The Executor should be invited to stand down should their response not deemed satisfactory.

If you are not satisfied with the response, you can make an application to court to remove the executor.

If your an Executor who has received a letter from a beneficiary expressing a wish for you to stand down or complaining about aspects of the administration you should take legal advice before responding. Executors will be entitled to have the costs of initial advice met by the estate. Executors cannot rely upon their indemnity from the estate when defending an application and therefore should consider apply to the Court to sanction their actions should they wish to defend an action and preserve their indemnity from the estate.

If you are unhappy with the way an estate is being administrated or have received a letter before action, please contact one of our team and we will be happy to talk you through your options. Please note in cases where you are considering removing an executor it is vital that you obtain legal advice as early as possible. 

 

 

What the Court will consider when deciding to remove an Executor

The relevant legal principles were summarised by Chief Master Marsh in Harris v Earwicker [2015]. 

1. It is unnecessary for the Court to find any wrongdoing or fault on the part of the Executors. The guiding principle is whether the administration of the estate is being carried out properly.

2. If there is wrong doing or fault which endangers the estate the Court is very likely to exercise its power under Section 50 of the Administration of Justice Act 1985 to remove the Executors/Personal Representatives. If there is valid criticism, but the matters complained of are deemed to be minor the Court may well decline to remove on the basis of wrong doing.

3. The wishes of the testator will be taken into account. 

4. The wishes of the beneficiaries maybe relevant although a beneficiary cannot simply demand the removal of an executor. 

5. In the absence of wrong doing or fault the Court will have to consider whether it has become impossible or difficult for the Executor/Personal Representatives to complete the administration of the estate or administer the will trusts. If a breakdown in the relationship between a beneficiary and the Executor makes the task of the Executor impossible or difficult a replacement Executor maybe the only option for the Court.

6. The Court will need to consider the cost of replacing some or all of the Executors as compared to the size of the estate. 

How are the Costs of a removal application usually dealt with ?

Whilst Costs are a discretionary matter for the Court the starting position is that the losing party should pay the winning parties costs. 

An Executor will often mistakenly believe that they will be automatically indemnified from the estate in respect of their own costs and any costs awarded against them. However the starting point when looking at an Executors indemnity is for the Court to determine whether they were acting in the best interests of the estate when deciding whether they are entitled to the protection of Civil Procedure rule 46.3. An Executor that vigorously defends a removal application is at risk of being personally liable for their own costs and that of the claimants should they be unsuccessful in defending a removal application. 

In the case of Lea Lilly Perry and Tamar Pery v Dieter Walter Neupert and others [2019] EWHC 2275 the Judge pursuant to Section 50 of the Administration of Justice Act 1985 removed an Executor named in a will and in the determination of costs the defendant argued they should be indemnified by the estate. The Judge determined that the Defendant’s conduct was not in the interests of the estate and therefore the Defendant was not entitled to an indemnity as was therefore personally liable for the costs of their defence and 85% of the Claimant’s costs. The Judge noted the removal application was vigorously defended and made reference to the tone, language and length of the statements put forward by the defence. The Judge also made reference that the Defendant had not seek sanction of the Court before defending the claim. 

It is important before any removal application is made that the claimant sets out their position to the executor/executors and asks them to stand down. Usually a neutral solicitor will be proposed to take over the administration. It is vital for an executor to seek legal advice before responding to such a request.

 

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Clodes Solicitors
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A common query we receive is that P has lost capacity - how does one remove an Attorney appointed under an LPA ?

The Mental Capacity Act 2005 under S.22 and S.23 gives the Court power to revoke an LPA or to determine any question as to the meaning or effect of a lasting power of attorney.

One must carefully consider whether the allegations have merit and who it is proposed would deal with the persons financial affairs should the LPA be revoked.

One could raise there concerns directly with the Office of The Public Guardian or the attorney.

Alternatively one could consider making an application to the Court of Protection to revoke the Power of Attorney and appoint X as a Deputy. If time is of the essence an application to the Court for Directions or Revocation maybe prudent following a letter before action.

If a person is considering a Court of Protection application they should seek legal advice before commencing.

Where a Court application for revocation is being considered the donor would need to be assessed by an expert to ascertain the following:

1. Does P have capacity to revoke their LPA ?
2. Can P validly enter into a new LPA ?
3. Does P lack capacity to request accounts from their attorney ?
4. Did P lack capacity to make the gift or relevant financial decisions at the relevant time ?

The Court can consider any past behaviour or apparent prospective behaviour by the attorney. Provided that X does not have capacity the Court has the power to take whatever steps it regards as appropriate in P's best interests, whether that be by revoking the LPA or by taking some other course.

If you have concerns about a loved ones Attorney contact Clodes Solicitors on 02920 765050 or at https://www.clodes-solicitors.com/service/lasting-power-of-attorney/ #solicitor #local

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