Removing an executor – Two recent cases

In most instances, the process of administering a deceased person’s estate runs smoothly; the executors and probate solicitors carry out the necessary probate processes and, eventually, the estate in question is distributed among the beneficiaries as per the provisions of the Will.

However, sometimes it might be necessary, for a number of reasons, to remove an executor from their role as an estate administrator. Unless the executor is willing to renounce their position and voluntarily stand down, you will need to apply to the court to have an executor removed. You will need to prove to the court that there is a clear reason why the executor should be removed.

Timing is crucial – has the executor started the process?

Please note that if you wish to remove an executor from the administration of an estate it is crucial that you take the appropriate action before they have played a part in the process. Once they have ‘intermeddled’ (carried out any part of the administration process), they cannot be removed without a court order. If you have a likely issue with a named executor you should therefore address it before it becomes a lengthy and expensive exercise.

Two recent cases which came before the courts provide information on how removal of an executor is approached by the court. Firstly, Hudman v Morris, in which siblings wished to remove their estranged brother as executor and, secondly, an unnamed case in which a beneficiary wished to remove the professional executor that had been appointed in her mother’s Will.

Hudman v Morris – Sibling executor dispute

In Hudman v Morris [2021] EWHC 1400 (Ch), Barry Morris’s Will had provided that his estate be divided equally between his five children. He had appointed two of his children as executors.

One of the appointed executors, Ms Hudman applied to the court to remove her brother, Mr Morris as executor. In making the application, Ms Hudman was supported by the three other sibling beneficiaries and was willing to stand down as executor.

The siblings were completely estranged from Mr Morris and earlier Court of Protection proceedings had already raised questions regarding the brother’s conduct in relation to his inability to act fairly and conscientiously in matters relating to Lasting Power of Attorney.

It was therefore believed by the siblings that he would be unable to administer the estate impartially and in a way that would ensure the best interests of all beneficiaries.

The father’s estate was relatively modest and straightforward and, sadly, the cost of the Court of Protection proceedings had already eroded its value considerably.

Under Section 50 of the Administration of Justice Act 1985, the court ruled that Mr Morris’s conduct showed he was putting his own interests above those of the estate. The court removed both Ms Hudman and Mrs Morris as executors and appointed an independent administrator.

The court was at pains to emphasise that a poor relationship between an executor and the beneficiaries is not, in itself, sufficient to justify an executor’s removal. However, in this case, the guiding principal for the court was whether the administration of the estate would be carried out properly and the welfare of all beneficiaries maintained.

Unnamed case – Refusal to renounce professional executorship

The deceased’s daughter applied to the court to remove a professional executor. The firm had been appointed as executor during the drafting process and had no other connection to the deceased. The daughter, who had considered the modest size of the estate and straightforward nature of the administration required, asked the law firm to step down. The firm refused.

The whole proceedings took more than two years to conclude, and eventually, the High Court ruled in favour of the daughter. In his judgement, Master Kaye said it was his opinion that the law firm should not have refused to renounce the position when it was obvious, largely due to the uncomplicated estate, that they should have surrendered the position when first asked.

The case serves as a reminder to law firms that an appointment as executor does not guarantee that they will undertake the work on the death of the testator, and that when choosing to refuse renouncement they must be able to show the court an explicit reason as to why it is imperative that they remain in situ.

Removing an executor – first steps

Beneficiaries of an estate have a number of rights that must be met during estate administration. When beneficiaries, and this sometimes includes named executors, feel the estate is not being administered correctly, they can seek to have the at-fault executor removed from the post.

In the first instance beneficiaries should ask the executor to renounce the executorship and this can be done via a letter to the individual or the law firm. If the executor refuses to renounce their role, you will need to apply to the court to have them removed.

The court will need to see clear evidence of wrong-doing or inaction in order to remove an executor. Examples of such behaviour include the following.

• Failure to provide beneficiaries with a copy of the Will and full details of the estate
• Failure to apply for grant of probate and act within appropriate time frames
• Dishonest or inaccurate statements of appraisal
• Selling assets at below full value
• Failure to uphold the testator’s wishes and instructions
• Incorrect distribution of assets or money

Wellers can help you with probate disputes

If you are involved in a disputed Will or contested probate case, the experienced probate solicitors at Weller Law Group can provide the legal expertise you need.

Contact us today to see if we can help you through the probate and estate administration process. We have a downloadable Probate & Estate Administration Services brochure which provides lots of information on the process and our services to you.

To talk to a solicitor, contact the Wellers Bromley office on 0208 464 4242, for London the number is 020 7481 2422, for our Surrey office call 01372 750100 and 01732 457 575 for Sevenoaks or you can email enquiries@wellerslawgroup.com to discuss your requirements.