Posted: Friday, 4 January 2019 @ 13:43
In short, it is pretty difficult to remove an executor(despite evidence of incompetence) and one needs to remember that a Court will be reluctant to get involved and attack the wishes of the testator.
Generally, save in cases of actual wrongdoing or fraud the courts are very reluctant to remove executors. Even if fraud is there and it is not the easiest thing to prove.
The executor often has much of the evidence and the beneficiary on the face of it is in a weaker legal and evidential position.
Removal executor cases are expensive and can be termed nuclear as they are unpredictable even if you have pretty good evidence against the executor.
Applications to remove or substitute a personal representative are made under section 50 Administration of Justice Act 1985 (normally) or under section 116 of the Supreme Courts Act 1981.
The overriding principle remains that the court will only remove an executor if it is in the interest of the proper administration of the estate and would promote the welfare of the beneficiaries, which will depend upon the relevant facts of each case.
Therefore I recommend that you only go down the route of removing an executor if you have exhausted the following options below.
Given this there is strong emphasis on the lawyer and his or her client to be tactical( and cunning) if dealing with a dodgy executor. Prior to taking this step of removal you need to have asked a series of searching questions before incurring £££s including:
1. Has one year passed since the deceased died? If you are within one year, forget about the application. The executor has one year from date of death to distribute the estate and a potential application only comes into play here.
2 Have you offered mediation or other forms of ADR(Alternative Dispute Resolution to the executor? A good lawyer will offer mediation to the other side not only because it can resolve a dispute, it can put psychological and legal pressure upon the other side. I like to offer mediation as often as I can in a legal dispute.
3 Have you considered making a Request for Inventory and Account? There are many ways to skin a cat and even if you would like to remove an executor you can put the pressure on the executor by getting him or her to explain him/herself within a Court setting. The Court fee for a Request for Inventory and Account is nominal and it is a simple application compared to removal of executor which is normally in the High Court.
4 Have you applied every possible legal leverage upon the dodgy executor? How many clear letters have you written to the executor setting out your position? Have you made a credible threat(s) to go to Court? Have you pointed out the financial costs of not doing what you want which presumably is reasonable? Have you considered doing something more outlandish such as getting counsel's(barrister's) opinion and disclosing it to the other side to put more pressure upon the executor?
5 Have you considered other applications to Court such as a citation, caveat or a specifc targated application such as a grant "ad colligenda bona" which can be obtained from the Probate Registry. Have you looked at every legal option in play prior to the probate being completed?
6 Would you be willing to wait until after the probate is complete(if it is ever completed) and then sue the executor for negligence? Making a straightforward monetary claim is easier than a removal of executor legal claim.
7 As beneficiary is your own conduct squeaky clean or have you put things in writing which the executor can justifiably call harassment? If you do not come into Court with clean hands you are in a weaker position.
8 What kind of person is the executor? Fundamentally will the executor fail to distribute the estate? Will the executor rip you off? If so, how much money is in play? Are you really motivated by getting what the deceased said you should get?
9 If you do remove the executor, who is going to step in? Do you want to be executor? Do you want the hassle and the legal responsibility? If not, who?
10 How much money are you willing to throw at this case? How likely will you get your costs back if I win? Could you lose? Could you afford to lose?
If you have considered those questions and you are still minded to sue, then despite the difficulties of removing an executor you may very well be good to go.