Executor Disputes
Disputes between or with executors and beneficiaries
The first thing to be clear on when estate administration is in dispute it to understand the role of an executor.
What is an executor?
Executor is the term for a person appointed within a will to administer an estate. Administrator is the term for someone appointed to administer the estate where there is no Will.
Personal representative is a term which can be used as an alternative for both executors and administrators. Whilst not technically correct, the term ‘executor’ is often used for administrators (i.e. those administering an estate where there is no will).
With extensive knowledge of all aspects of contentious probate and executor disputes. We can offer proactive and cost-effective solutions to complicated disputes.
Our team consists of members of the Society of Trust and Estate Practitioners and the Association of Contentious Trust and Probate Specialists (ACTAPS). Our team are also ranked by the Legal 500 and Chambers & Partners High Net Worth guide for private wealth disputes.
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Common disputes between executors
There are several circumstances whereby problems can occur in the administration of an estate. There may, for example, be disputes as to the suitability of an executor, the actions taken by an executor, failure to take any action, their independence or whether they are conflicted, their interpretation of a will, the values attributed to assets, and so on.
These disputes can be between co-executors or between an executor and one or multiple beneficiaries. Executors can also find themselves in disputes with third parties who are not either executors or beneficiaries.
In such situations, various options are available. For example, it is possible for the Court to either give directions to the executors (under Part 64 of the Civil Procedure Rules 1998) to resolve any issue within the estate administration.
Equally, the Court could remove and substitute the executors entirely (under section 50 of the Administration of Justice Act 1985). There are also methods by which executors can be forced to account for their actions within the estate administration and, if relevant, be responsible for any financial loss suffered.
The Court is not easily persuaded that executors should be substituted and, as a result, any application for removal should only be made if the executors are acting in serious breach of their duties and, even then, any application would need to be supported by sufficient evidence.
Meet the executor disputes team
Craig Ridge
Partner and Head of Contentious Probate
Joseph Martin
Senior Associate - Contentious Probate
Georgia Stott
Senior Associate - Contentious Probate
What are the duties of an executor?
The executor is the person responsible for administering the estate. There can be multiple executors or a sole executor. Executors are expected to act responsibly and diligently throughout the process of the estate administration.
Broadly speaking, the role of an executor is to realise the value of the deceased’s assets, settle any liabilities and then distribute the estate in accordance with the terms of the deceased’s will or, where there is no will, in accordance with the rules of intestacy.
Those duties are specifically set out in Section 25 of the Administration of Estates Act 1925, which states:
The personal representative of a deceased person shall be under a duty to:
- collect and get in the real and personal estate of the deceased and administer it according to law;
- (b) when required to do so by the court, exhibit on oath in the court a full inventory of the estate and when so required render an account of the administration of the estate to the court;
- (c) when required to do so by the High Court, deliver up the grant of probate or administration to that court.
Executors must also “exercise such care and skill as is reasonable in the circumstances, having regard in particular to any special knowledge or experience that he has or holds himself out as having”.
The grounds for executor removal
The grounds upon which an application to remove an executor can be made broadly include:
- Acting in conflict to their own interests – if the executor’s own interests’ conflict with that of the estate, then it is likely that a conflict of interest would arise, rendering their continued appointment unsuitable.
- Applying the law improperly – the executor may have wrongly interpreted or applied the legal framework in which they are acting, which may result in loss to the beneficiaries.
- Refusing to communicate with the beneficiaries of an estate – In order for the beneficiaries to properly understand the extent and progress of the estate administration, there must be communication with the executors.
- Acting contrary to the terms of the will – the terms of the will are instructions from the deceased as to how their estate is to be distributed. Save for certain exceptions, the executor is bound to adhere to the terms of the will.
- Excessive delay – whilst some estates will take longer than others to progress, there is an expectation that the executors will act promptly in administering the estate and, consequently, if the executors delay excessively, they risk being removed.
It is important to recognise that the Court will not generally remove an executor simply because there is some friction or hostility between the executors and beneficiaries. Rather, the Court will look at the overall impact of substituting an executor and prioritise the interests of efficiently administering the estate for the beneficiaries.
In the recent case of Lane v Lane [2024] EWHC 275 (Ch), Jonathan Hilliard KC, sitting as Deputy Judge of the High Court stated that “the touchstone under section 50 of the Administration of Justice Act [1985] is what is in the interests of the beneficiaries of the estate as a whole”.
In that case, following multiple instances of poor conduct from the executor, the Judge concluded that the interests of the beneficiaries would be better served by the appointment of an independent professional administrator.
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What is the process of removal?
The Court has the discretion to appoint a person to act in place of the existing executor under Section 50 of the Administration of Justice Act 1985.
Before issuing proceedings, applicants are expected to provide a letter of claim placing the executor on notice of their intention to issue proceedings to allow them the opportunity to respond. If the applicant cannot reach an agreement with the executors, they can issue an application in Court.
Applications are made by filing a part 8 claim form at Court with a supporting witness statement containing all the relevant facts to justify the order sought. Any documentary evidence would support the witness statement. Once issued by the Court, the applicant is required to serve the application upon the executors and any other relevant parties, at which point they can then formally respond to the proceedings.
If the parties are still unable to agree on a resolution of the claim, then the Court will usually list a directions hearing, the purpose of which would be for the parties to agree with the Court on the steps required to take the matter through to a final hearing.
Typical steps include the opportunity for further evidence to be filed by either party to support their respective positions. At the final hearing, the judge will consider the evidence and arguments of each party and will reach a conclusion on the application, including a decision as to whether any party should be made liable for paying the legal costs involved in the proceedings.
Why choose us as your executor dispute lawyers
With extensive knowledge of all aspects of contentious probate, as well as executor disputes. personal taxation, property law and dispute resolution, where there are arguments or disagreements over a will, we can offer proactive and cost-effective solutions to complicated and difficult disputes.
As an award-winning, full-service legal practice, we pride ourselves on offering a holistic service to clients. We draw on the expertise of our colleagues across the practice, using a multi-disciplinary approach to tackle other legal issues that may arise.
Down-to-earth and practical, our lawyers are renowned for guiding clients clearly and methodically, providing bespoke advice to achieve the best outcomes. We also have a reputation for clear communication, making sure you understand your options and legal responsibilities.
