What happens when joint executors or attorneys disagree with each other?

How are decisions made when you have multiple executors or attorneys? Mark Terrar, Partner in the Contentious Trusts and Probate team at Meridian Private Client LLP, explains what happens when joint executors or attorneys disagree with each other.

Joint Executors Attorneys

How many executors or attorneys can you have?

Executors of wills

There is no limit to how many executors can be appointed in a will. However, only up to four executors can be granted probate, as stipulated in s.114(1) of the Senior Courts Act 1981.

Attorneys of lasting power of attorney

For lasting power of attorneys (LPAs), there is no upper limit to how many attorneys you can have. However, it is usually best to have between one and four attorneys. The fewer people appointed, the less chance there is of disagreements.

Appointing a single executor or attorney can have its benefits. However, there are several good reasons why appointing more than one executor or attorney is a good idea and sometimes it may even be necessary, such as when there are minors who are beneficiaries (people who will inherit) of an estate (money, property and possessions).

How are decisions made when you have multiple executors or attorneys?

Executors

Where there are multiple executors, they can act on their own (severally) or as a group (jointly). However, the act of one of them is deemed in law to be an act of all of them. This means that even if the other executors disagree with the action/decision of another, the action/decision is still binding.

It should be noted, however, that this is not the case when dealing with land. Section 2(2) of the Administration of Estates Act 1925 states that actions must be agreed by all executors.

Attorneys

For attorneys, there will be a stipulation as to whether they can make decisions jointly (as a group) or severally (on their own). The donor (the subject of the LPA) will indicate whether a type of decision is to be made jointly, severally or either. Different requirements can be specified for different decisions.

If a decision by attorneys must be joint, then unless there is unanimous agreement no decision can be made. However, if an attorney who is allowed to act severally makes a decision, that decision will be valid even if it causes conflict with the other attorneys.

How can disputes between joint attorneys or executors arise?

It’s important that all decisions should be discussed (either in person or by correspondence) by all attorneys/executors to ensure that all agree on a decision where needed. This will depend on the nature and seriousness of the decision. The bigger the decision the greater the need for consideration and records or minutes of meetings.

However, it is only natural that disagreements will occur. Not every disagreement will result in a full-blown dispute, however if a loved one who has lost capacity or a bereavement has occurred, emotions and tensions can run high. A few examples of common disputes include:

  • A clash of personalities/historical disagreement

An example of this may be when two or more siblings are appointed as executors or attorneys but there has been a breakdown in their personal relationship which impacts their duties. This may lead to the executors or attorneys having opposing views. Often parents assume that their children will be able to put their differences behind them. However, sometimes long-term resentments come to the fore once a parent has lost capacity or has passed away.

  • Differences in approach between attorneys/executors

When there are multiple executors/attorneys appointed, it may be the case that some are more proactive than others. The proactive executors or attorneys may become frustrated with the lack of progress being made which in turn causes difficulty between the co-executors or co-attorneys. Added pressure from the beneficiaries can also add to an executor dispute of this nature. Different individuals will often have different priorities as to what is and what is not more important to deal with.

  • Executors/attorneys may be trying to act in breach of duty or displaying misconduct

This may happen, for example, when one or more of the executors are also a beneficiary of the estate and a conflict of interest arises. They may perhaps be living in the property of the deceased at the time of death, having not paid any rent to the deceased during the deceased’s lifetime. As a result, they may refuse to pay any rent to the estate upon death. That executor is therefore in a position of conflict as their duty as an executor is to gather any rent due to the estate. The other executors are arguably under a duty to pursue this rent claim.

  • Wide discretion

On many occasions the attorneys/executors will have a very wide-ranging discretion. The wider the discretion the greater the scope for differing views. Each one could be completely legitimate and no one point of view more valid than another but that can in itself cause a dispute.

  • Lack of clarity about what decision can be made and whether there is power to make it

For example, there could be a disagreement as to the interpretation of a clause in a will or exactly what power the executors or attorneys have to make a certain decision.

How can disputes between joint attorneys or executors be resolved?

In general terms, there are four ways of resolving disputes:

  1. By obtaining legal advice as to the “correct” approach to the decision - This is not always going to be possible but certainly is very feasible, for example, where there is a disagreement as to exactly what powers the attorneys/executors have. Obtaining clarity on the position could well resolve the disagreement and allow the joint decision to be made. This approach is unlikely to be as easy where there is a dispute with a serious personality clash involved.
  2. By reaching an amicable agreement - In most disputes, it is seldom too late to negotiate and reach an amicable agreement. Legal advice may or may not be required to do that. Engaging in negotiations, for example, has a lot of advantages and can often help resolve a dispute.
  3. Applying to the High Court (for executors) or the Court of Protection (for attorneys) for directions or guidance from the Court - Where there is disagreement which is preventing a decision being made the court can be asked to step in and make the decision for the executors/attorneys. Specialist legal advice should always be taken before embarking on this step. The court will generally not consider it to be its role to be making discretionary decisions for attorneys/executors, but where there is disagreement or an especially important decision it is appropriate to do this. 
  4. Applying to remove one or more of the joint attorneys/executors – This is more of a drastic step, but it is appropriate where they are the main cause of the difficulties. This sort of step would most commonly be taken where there is, say, a breach of trust, some kind of misconduct or some conduct that calls into question their suitability.

Summary

Each dispute will have its own individual circumstances and there is no right or wrong approach to take. Taking legal advice at an early stage, however, can often have the effect of making sure that matters do not escalate too much and can make the parties in dispute reach an agreement sooner rather than later. If that does not work, then a formal application to court remains an option.

It is also important to say that if legal advice is needed then there will almost certainly be legal fees to pay. Executors and attorneys are usually entitled to an indemnity from the fund for any legal fees they incur in the legitimate exercise of their duties. Certainly, obtaining legal advice jointly as to the scope of their powers to help resolve a disagreement is likely to be covered by that.

However, if there are clashing executors/attorneys who need to apply to court to resolve their differences then the court will be entitled to make decisions about who pays legal fees. There is also no guarantee that the executors/attorneys will be able to be paid by the fund. This will be a discretionary matter for the judge hearing the case and several factors, including the parties’ conduct, will be considered. Whilst often costs will be covered by the fund, it is risky to assume that they will. 

About the author

Mark Terrar is a Partner in the Contentious Trusts and Probate team at Meridian Private Client LLP.  He deals with all manner of disputes arising in respect of estates and trusts, including applications to remove executors/attorneys from office, and for directions from the Court.

See also

The duties of an executor: what to do when someone dies

How to remove an executor of a will

What you need to know about lasting power of attorney (LPA)

What to know about replacement attorneys for lasting powers of attorney (LPA)

A guide to the Court of Protection

Find out more

Senior Courts Act 1981 (Legislation)

Administration of Estates Act 1925 (Legislation)

Image: Getty Images

Publication date: 9 March 2022

Any opinion expressed in this article is that of the author and the author alone, and does not necessarily represent that of The Gazette.