What happens if executors don't follow a will?
Katie Alsop explains the best course of action when dealing with problem executors.
The executor role requires calling in, collecting and distributing the deceased’s estate in accordance with their will. If the terms of the will aren’t followed, action can be taken against problem executors.
What are the most typical executor issues?
Executors who are appointed by someone in their will often run into problems they can’t agree on. Two of the most common issues between executors are when:
- agreement can’t be reached about how assets of the estate should be dealt with
- conflicts of interest arise out of an executor’s personal interest in an estate as beneficiary, and the neutrality required of them to act in the best interests of the estate
Make sure that you evidence all contact and attempts at resolution
If an executor doesn’t follow the terms of the will, the first course of action is to contact the executor to highlight the issues of concern. This should be done in such a way that if necessary, at a later date, the letter can be relied on to demonstrate to the court that:
- the concerns were concisely raised, and were put to the executor at an early stage
- an opportunity was afforded to the executor to remedy to problem
It’s essential to create an evidential trail, so that if matters need to be decided by the court or the Probate Registry, there is documentation to demonstrate all attempts to resolve matters in advance of embarking on legal proceedings.
When removal may be necessary
If the executor refuses to correct their approach, or is simply not willing to engage in any communication to deal with the matter, it’s possible to make an application to court to remove them. The way this is dealt with is determined by reference to whether a grant of probate has already been extracted from the Probate Registry.
Although typically, when solicitors are instructed in respect of contentious matters, the first port of call for legal proceedings is court. There is also the ability to deal with matters at the Probate Registry using the Non-Contentious Probate Rules 1987 (as amended). This is a particularly niche area of law, governed by standalone rules, which should be approached with caution, as many of the timescales and practices vary significantly from the Civil Procedure Rules.
When dealing with problem executors, whether before the Probate Registry or a court, the registrar or judge will have regard to the conduct of the executor, both in terms of the lack of regard for the terms of the will, and the way in which the problem executor has dealt with any attempts by co-executors or beneficiaries of the estate to resolve matters.
In terms of resolving these types of cases, where there are issues as between the executors, if a way forward can’t be agreed between the executors, the court will usually appoint an independent administrator to deal with the estate, going forward. There are of course cost implications – if the original executors were lay executors, however, the estate will be administered neutrally in accordance with the terms of the will and, more likely than not, in an efficient manner.
If, rather than an inter-executor dispute, there is only one executor, or it is obvious that one of a number of executors is the issue, the court will be more inclined to appoint an alternative lay executor in their place. There are various requirements that must be satisfied for the Probate Registry or court to agree to such an appointment, but they’re not particularly onerous.
Why removal shouldn’t be taken lightly
When dealing with applications to secure the removal of an executor, bear in mind that this is not a decision to be made lightly. This is because to make such a decision will upset the choices made by the deceased during their lifetime and, as such, there will need to be good reason to disregard the deceased’s wishes.
It’s therefore essential to have explored resolving matters in advance of the application being made, which must then be evidenced to the Probate Registry or court with the appropriate application of claim.
About the author
Katie Alsop is a senior associate at Wright Hassall LLP.
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