Posted: Thursday, 17 September 2020 @ 16:25
There is a school of thought amongst many lawyers and indeed amongst would be clients/litigators that removing an executor applications are very difficult, expensive and should only be done as a last resort. e.g when you really are at the end of your tether and totally desperate.
To some extent this is a view that I have prescribed too and typically in a probate dispute I would advise to clients try to avoid going for the jugular (just yet) by looking at other legal mechanisms such as an inventory and account application or say a specific application such as just getting the deceased's home sold when an executor is sitting on his/her hands or just coming up with some excuse for nothing happening in the past six months.(if they can be bothered to write to your numerous chasing communications)
Nevertheless while there is a time and a place for the niche application (making specific requests for errant financial information which has disappeared/not being disclosed) is increasingly becoming a particular favourite of mine in the High Court, I believe that if a beneficiary is facing an executor who appears to be hell bent on fraud, taking the gloves off and making a Section 50 application is the way to go.
There are two things going on.
1 I believe Covid (and historic Court cuts) has led to a divergence between the quality of speed of justice. A removal of executor application can be heard in the High Court which offers a speedy and courteous service. Other Court methods can take much longer and momentum can be easily lost.
2 I believe as I have got more experienced it is possible to ask executors probing questions and within a short space of time you have acquired sufficient papertrail to justify a successful removal of executor application. The key is the lawyer making an effective call that removal is justified. While it will take quite a lot of evidence to remove an executor if you can acquire the evidence early enough you can make that removal application.