Executor Disputes
Guiding you through all aspects of executor disputes
The first thing to be clear on when estate administration is in dispute it to understand the role of 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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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”.
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.
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.
FAQs
An executor is the person (or people) responsible for sorting out the property, possessions, money and other affairs after someone has died. If there is a valid will, this will name an executor(s). If there is no will, or the appointed executors do not want to accept their appointment, then the person responsible for doing this work is called the administrator, and this is usually a beneficiary of the estate .
The executor or administrator can ultimately be held accountable for any mistakes made. They can however appoint a probate practitioner as an agent to help administer the estate.
There are range of legal remedies available to you when dealing with delayed estate administration. The choice of legal remedy often depends upon the seriousness of the issues within the estate and the need for court interference.
It is also advisable for parties to attempt to overcome any disputes by agreement, but failing that, it is possible to seek directions from the Court under part 64 of the Civil Procedure Rules 1998.
Should the circumstances of the case justify it, an application to court to remove an executor can be made under Section 50 of the Administration of Justice Act 1985.
Executors are obliged to provide a full inventory and account of the value and make up of the estate when called upon to do so by a beneficiary.
If an executor fails to do so, then in accordance with Section 25 of the Administration of Estates Act 1925, you can apply to the Probate Registry for a summons forcing the executors to provide the estate information requested.
Potentially. Section 50 of the Administration of Justice Act 1985 gives the Court the power to remove an executor and substitute a replacement executor if there are sufficient grounds upon which to do so.
Whilst every individual application will be dealt with and assessed on the facts of that particular case, if the executors are acting in breach of their duties, such that their continued involvement would no longer be appropriate, it is possible to remove them.
To remove an executor, it will be necessary to prepare the relevant claim form and supporting witness statement along with the consent and explanation of the suitability of the intended replacement executor (if required) and file that at Court.
Once your application is with the court, the court will set out a hearing of the application and will put procedural steps in place as appropriate until a final hearing of the case can take place and an order can be made by the Courts.
Typically, applications for removal can take 9 to 18 months to reach a conclusion, albeit the timescales involved depend upon the court’s availability at any given time of the year.
Executors are under a duty to act in accordance with the will of the deceased, or alternatively, the laws of intestacy (if there is no Will). As such, it would not be appropriate for an executor to deliberately withhold money from a beneficiary, if doing, so, was contrary to their duties.
There may be circumstances in which an executor may attempt to justify the withholding of money from a beneficiary, for example, if that beneficiary owed the estate money. If there were any dispute, as between an executor and beneficiary on the withholding of any money, then it is likely that the involvement of the court would be required to resolve any such dispute.
Those leaving a will have total discretion as to who they appoint as their executor, and who they decide will benefit from their estate. Often those leaving a will choose executors to whom the trust, and as a result, it is common that they appoint somebody as both their executor and beneficiary.
It is possible to dispute the appointment of an executor. The process in which you would do so depends upon whether the executor in question has obtained the grant in the estate yet.
If the executor in question is yet to obtain the grant, then you have the option of entering a caveat on the estate, the effect of which would prevent that executor from obtaining the grant. This is, however, only a short-term remedy as you would then be required to either agree with that executor that they do not take the position, or you would have to go through a court process to obtain an order to prevent the executor in question from taking post (and, potentially, appoint an alternative executor).
If the executor has obtained the grant, then it would be necessary to issue an application under section 50 of the administration of justice act 1985 to obtain the court approval to remove them from post and substitute somebody else in their place.
Misappropriation of funds by executors refers to circumstances in which executors wrongly take funds from an estate either for their own personal use or for someone else who is not so entitled. Misappropriation of funds is a serious breach of the duties of an executor, and in certain circumstances, can be a criminal act.
Executors are typically expected to administer an estate within a year. There are circumstances in which administration of an estate can take considerably longer if, for example, the estate contains businesses, several properties, several beneficiaries, or if there has been a dispute within the administration itself.
Meet the contentious probate team
Craig Ridge
Partner and Head of Contentious Probate
Georgia Stott
Senior Associate - Contentious Probate
Joseph Martin
Senior Associate - Contentious Probate
