The appointment of an executor of an estate entails significant fiduciary duties in the administration of a deceased individual's estate. When an executor neglects or fails to discharge these responsibilities adequately, beneficiaries may find recourse through legal avenues. This article outlines the legal steps available to beneficiaries in the UK when confronted with an executor's failure of duties in estate management.
It is an executor’s prerogative to accept or refuse to extract the grant of probate. If the executor is willing to take on their role, they will need to apply for a Grant of Probate, which will entitle them to deal with the estate assets and the subsequent estate administration. In cases where an executor deems themselves unfit or unwilling to fulfil their fiduciary duties, they may formally renounce the Grant of Probate, relinquishing their role in estate administration.
In circumstances where beneficiaries perceive a failure or misconduct in the administration of the estate, they can challenge the executor of a will and may consider issuing legal proceedings for their removal. This entails making an application to the Court to remove and replace the executor with a more suitable individual, ensuring the proper and efficient execution of the deceased’s testamentary intentions.
Grounds for removing an executor
Grounds for the removal of an executor include, but are not confined to, neglect of duties, incompetence, conflict of interest, or actions contrary to the best interests of the estate and beneficiaries. The Court will scrutinise the circumstances before effecting the removal of an executor. Such applications are decided on their merits, and the Court may consider that appointing an independent executor would be the best course of action to ensure an efficient administration of the estate.
In the case of Khan v Crossland, it was held that the Court’s discretion under s.116 of the Senior Courts Act 1981 was wide. It was further held that although the testator’s choice of executors was a relevant factor, it was certainly not final and must be weighed against the collective stance held by the beneficiaries. Such a collective stance in relation to an executor can constitute a special circumstance, and in conjunction with the evidence surrounding the breakdown of trust and the relationship between the parties, it tilts the balance in favour of the application. Such judgments illustrate the Court’s authority to protect the proper administration of the estate, even when there is no clear evidence of serious misconduct or wrongdoing on the part of the executor.
The initiation of legal proceedings to remove an executor, has its own cost implications. These costs, as governed by the Civil Procedure Rules (CPR), may be awarded on either the standard basis or, in certain circumstances, on the indemnity basis. It is imperative to note that the award of cost is at the discretion of the Court.
Before commencing legal action to remove an executor, beneficiaries must carefully assess the potential cost implications which could be considerable. Indemnity costs may be awarded if an executor's conduct is regarded as unreasonable and not in the estate and beneficiaries’ best interest. However, beneficiaries should exercise caution, recognising that indemnity costs are contingent upon satisfying explicit conditions.
The beneficiaries have the means to address the removal of an executor who fails to meet their fiduciary obligations, either by filing a claim for removal or seeking guidance from the Court. Therefore, understanding the relevant procedures, the merits of such an application, and the potential cost implications would help beneficiaries navigate the process, ensuring the efficient management and administration of the estate.
The information provided in this article is provided for general information purposes only, and does not provide definitive advice. It does not amount to legal or other professional advice and so you should not rely on any information contained here as if it were such advice.
Wright Hassall does not accept any responsibility for any loss which may arise from reliance on any information published here. Definitive advice can only be given with full knowledge of all relevant facts. If you need such advice please contact a member of our professional staff.
The information published across our Knowledge Base is correct at the time of going to press.