What can you do when an executor breaches their duties or abuses their position?

Richard Wilson, Associate

Executors are often family members, friends or trusted advisers who are thought to be properly capable of handling the responsibility of administering an estate.

But what happens when the executor doesn’t live up to expectations?

We recently acted for a client whose brother was appointed as the executor under the wills of both of their parents. Though the parents had respectively died 4 and 6 years ago, the brother had made no progress with the administration of their estates and had failed to respond to reasonable enquiries our client made about the estates. Our client was concerned that she was yet to receive any inheritance and, naturally, was suspicious that not all was well with the administration.

The circumstances our client found herself in are, unfortunately, all-too common. Where an executor does not appear to be performing their duties and beneficiaries’ emotions are already fraught in dealing with a loved one’s passing, this can cause tension and breakdowns in relationships between family and friends.

A beneficiary can take some comfort from the Court’s ability and willingness to intervene when an executor fails to meet their obligations or abuses their position for their own advantage. Pursuant to section 50 of the Administration of Justice Act 1985, the Court can remove or substitute an executor.

The most obvious examples where a Court will intervene to remove an executor are cases of fraud, theft or other serious misconduct. However, the Court is also increasingly prepared to do so where an executor’s conduct is not as serious as those examples if it is in the interests of the beneficiaries to do so. The Court recognises the need for estates to be administered within reasonable timeframes and has shown it will not tolerate unnecessary delay or non-performance of an executor’s duties. Indeed, the Court has removed executors on a number of different grounds, including their failure to maintain and produce reports, records and accounts of the administration, delay in gathering in estate assets, failing to communicate with the beneficiaries, or treating estate assets as if they belong to the executor personally.

Beneficiaries should, therefore, not hesitate in seeking advice on the potential removal of an executor at an early stage if they have concerns about the administration of an estate – early intervention can limit the harm that a poorly performing executor might otherwise cause.

The Court will often appoint an independent, professional administrator in place of the removed executor. Whilst this will come at a cost to the estate, it ensures the estate is fairly and properly administered for all beneficiaries and, hopefully, prevents further costs associated with poor or improper administration.

Executors are expected to remain neutral and act reasonably when faced with legitimate concerns about their conduct. If they fail to do so, and a beneficiary successfully takes action to remove them, the executor can expect to be made personally liable for the legal costs incurred.

As for our client, the issuing of proceedings to remove her brother as executor was enough to spark him into action. He has now sought professional assistance with the administration of the estate which has ensured progress is finally being made.

If you require advice on the conduct of an executor contact Richard Wilson on 0161 832 3434 or Richard.wilson@kuits.com