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What Should I Do About a Hostile or Ineffective Executor?

2018-12-06T10:54:30+00:00December 6th, 2018|News|

A hostile, unreasonable or ineffective executor can be a serious problem when someone’s estate is being administered.

Executors are people named in a Will who have been appointed to administer an estate. In other words, the person who has made the Will has specifically chosen them to carry out these important duties after that person has died.

If you are a beneficiary of the Will, or even acting as another executor yourself, an obstructive executor can make your situation very difficult. They might slow down distribution of the estate, keep information from you, or even serve their own interests above those of the estate.

There are ways in which you can remove an executor in certain circumstances. However, applying to the court to remove an executor is a big step, and the courts have been keen to point out that it should not be done lightly.

So, should you try to remove a hostile executor? If not, are there any other options available to you?

What are your options?

  1. Removal through Mutual Consent – It might be possible for you to agree with the executor that they step down from their position. If they have been performing their duties poorly (or not at all), they might welcome the chance to set the responsibility aside. Although this is unlikely to be viable where there is hostility between you, it should always be explored as a first option as it can resolve the matter quickly with minimal cost.
  2. Mediation – This is an alternative means of resolving disputes. Rather than a lengthy legal process ending in a hearing before a judge, it involves the parties meeting, with their legal representatives, in the presence of an impartial mediator. The mediator will actively identify areas of dispute and help the parties to reach an agreement. Any agreements which are made will then take the form of a legally binding contract. However, mediation does require the parties to agree to take part in the first place.
  3. Making an Application to the Court – This should be considered only as the last resort for removing an executor, as the process can be lengthy and expensive. However, it may be the only option available if the hostile executor is unwilling to reach an agreement with you. We looked at the technicalities of removing an executor or personal representative in a previous blog post.

Would an application to the court succeed?

This is an important question to consider before applying to remove an executor.

The key issue that a court will look at is whether the estate is being properly administered under the current executor. All other considerations are secondary, as the court will keep the interests of the estate as its main priority.

Therefore, you should assess, as impartially as possible, whether the administration of the estate is being adversely affected by the executor in question. Just because you disapprove of, or have personal differences with the executor, does not in itself give you the grounds to remove them from their role.

If you are at all unsure of your position, or whether an executor is obstructing the administration of the estate, you should seek legal advice from a specialist Wills and probate solicitor.

An example – the case of Haynes v Andre [2018] EWHC 489 (Ch)

This case helps to illustrates some of the issues involved in an application to remove an executor.

In the case, Charles Haynes applied to remove Raymond Andre as the sole executor of the estate of Charles’s late mother, Yvonne Haynes. Charles was a beneficiary of Yvonne’s Will along with his sister, Kathleen Haynes.

Both Charles and Kathleen had been unhappy with the way Mr Andre had been administering the estate. Charles alleged that information was being kept from him and that Mr Andre was not fulfilling his duties efficiently. Furthermore, Charles and Kathleen were annoyed that Yvonne’s flat had not been put up for sale, rented out or otherwise maintained, during the year following the grant of probate.

However, even though Mr Andre was willing to step down as executor, and Kathleen was also in favour of this, Charles’s application was opposed by both of them. Where Charles wanted an independent professional executor to be appointed in Mr Andre’s place – or failing that, for himself to be appointed – Mr Andre and Kathleen wanted Kathleen to take over as executor. Charles argued, among other things, that Kathleen was ‘too passive’ to administer the estate effectively.

The Court’s decision

Sadly, Charles passed away before the court could deliver its judgment. However, the court explained that his death had not affected its decision.

The court was satisfied that Mr Andre should be removed as executor, noting the length of time which had elapsed and that, in anticipation of the court’s decision, Mr Andre had effectively stopped acting as an executor some months before.

The court also ruled that Kathleen should be appointed in his place. The judge felt that Charles’s criticisms of Kathleen were unjustified and also that the estate did not have enough accessible resources to fund a professional executor. Another point in Kathleen’s favour was that Yvonne, in her Will, had chosen Kathleen to become an executor in the event that Mr Andre died before Yvonne.

Significant Points from the Case

The case reinforces the idea that the interests of the estate are paramount when deciding whether to remove an executor.

If Charles (as a beneficiary) had still been alive, and given his relationship with Kathleen, would her appointment as executor mean that Charles would have another ‘hostile’ executor administering his mother’s estate?

The judge addressed this point by stating:

“Friction and hostility between an executor and a beneficiary is not of itself a good reason for removing an executor. It is a factor to be taken into account if it is obstructing the administration of the estate.”

In other words, animosity is not enough to remove an executor, nor is it enough to prevent their appointment. You may not agree with what an executor is doing or how they are doing it, or you might just clash with them on a personal level, but to successfully remove an executor takes either agreement between the people involved or evidence sufficient to convince a court that the administration of the estate is suffering from their tenure.

The case also highlights how hostility can prevent practical solutions to issues. Mr Andre agreed that he would step down as executor but the bad blood between Charles and Kathleen prevented agreement over who should be appointed in his place. Naturally finding a common consensus will be difficult in situations where an executor is hostile or where a dispute has slowed down the administration of the estate, but you should always look to see if a compromise can be found.

Can Roche Legal help?

At Roche Legal, we are reassuring experts specialising in:

If you would like advice about any of the issues discussed in this article, please contact us.

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About the Author:

Rachel Roche
Rachel is a fully qualified Solicitor known for her personable style and strives to ensure that all of her clients receive a tailored and efficient service.
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