Solicitor Louise Low, in our Dispute Resolution team, discusses removing the Personal Representatives (executors or administrators) for a person’s estate when someone dies.
When someone dies their estate is dealt with by their Personal Representatives (“PRs”), either executors appointed by a will or administrators where there is no will. In most cases the PRs will need a grant from the probate registry which empowers them to act. However, difficulties can arise where there is a dispute between those concerned.
If an issue arises before the grant is obtained, steps can be taken to prevent someone taking out the grant where the person entitled is unfit or it is not appropriate for them to act; for example where the proposed PR is mentally unwell or is in prison. Equally where there is some conflict of interest between the individual and the estate or more than one person is entitled and they are in dispute then the Court has power to “pass over “ their claims and appoint someone independent to deal with the estate.
Issues can arise after the PRs have taken out a grant. PRs have an overriding duty to collect in the estate and administer it correctly. If they fail in this duty a beneficiary who believes that the estate is not being properly dealt with can apply to the Court to substitute or remove the PR’s representatives.
Where there is clear evidence of wrongdoing by the PR or an obvious conflict of interests then the court will usually remove them. More difficult are those cases where there is no obvious jeopardy to the estate, but the parties are at loggerheads. The Court will not remove the PRs simply because there is friction or hostility between them and the beneficiaries. The Court’s main consideration is to ensure the proper execution and administration of the estate and the protection of the beneficiaries’ interests. In a recent case a sole executor was replaced because he had been pursuing the private sale of the deceased ‘s property to an individual who for over 18 months had failed to enter into a contract and was refusing to place the house on the open market through agents.
Difficulties can arise where there are two executors who are also joint beneficiaries who are unable to agree on how best to proceed with the administration of the estate. A typical example may be a failure to agree over the sale of the deceased’s house. Such disputes may be capable of resolution by getting directions from the court, but where disagreements become fundamental and relations between the parties deteriorate so that there is a high degree of animosity and distrust, then the Court may be prepared to resolve the impasse by removing both executors and replacing them with a professional, usually an experienced solicitor.
The decision whether or not to remove PRs is always a matter within the discretion of the Court which exercises a supervisory role in respect of the administration of estates. The Court will take account of the extra expense and loss to the estate that a change of PR might involve and of the deceased’s choice of executor. However, the focus will be on whether there is evidence that continuance in office is likely to prove detrimental to the proper administration of the estate and the interests of the beneficiaries. Much will depend upon the facts of the particular case.
Before attempting to remove a PR it is important to take advice from a solicitor experienced in this field. Such proceedings are hostile litigation and costs may be awarded against the unsuccessful party. It is always best to see if matters cannot be resolved in other ways before embarking on such proceedings. Certainly it would be important to set out in correspondence details of what has happened up until now and what the PR ought to do in order to avoid an application for removal. Only if the PR fails to take these steps or give a good reason for not doing so should the formal court process be considered.
For further information or legal advice, please contact law@blandy.co.uk or call 0118 951 6800.
This article is intended for the use of clients and other interested parties. The information contained in it is believed to be correct at the date of publication, but it is necessarily of a brief and general nature and should not be relied upon as a substitute for specific professional advice.
