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Executors – Making the Right Choice

26-06-2014

Executors

When preparing a will, the choice of executors is one of the most important decisions a testator needs to make. It is they, who have the responsibility of administering the estate in accordance with the will under which they are appointed. Sadly in many cases, it is also a matter to which individuals often give little thought. The decision for a parent to just appoint all their children for example may be considered a ‘safe’ option, yet history is riddled with sad cases of warring family executors.

The role of executor is crucial yet demanding. All the beneficiaries under a will, be they family, friends or charities, are wholly reliant upon the executors. They look to them to properly and promptly administer the will, collect in the assets and distribute monies and property accordingly. When this process does not run smoothly, it is the estates’ beneficiaries who suffer.

As all executors are required to work together to sign documents and make decisions on the administration, minor disagreements can have far-reaching consequences. Testators should give serious consideration as to whether their chosen executors will actually be able to work together to administer their estate. If they believe there may be a risk of conflict, a testator should consider changing their appointed executors (and leave a clear note with the will of their reasons for excluding someone who may otherwise have expected to have been appointed).

When things do go wrong, the Courts do have powers under Section 116 Senior Courts Act 1981 to remove an executor ‘in special circumstances’ when it is ‘necessary or expedient to appoint another person’. This is not a power the Courts exercise lightly. In A-B v Dobbs [2010] Mr Justice Coleridge confirmed that the courts should not ‘lightly set aside’ the wishes of ‘a testator who takes the trouble to name people to administer his or her estate after his death’. Only if those individuals have ‘disentitled themselves from carrying out that task’ should the Court intervene.

Much case law has established that executors simply ‘not getting on’ is often insufficient for the Courts to remove them. In these cases, the administration of the estate will have been both significantly delayed, exposed to considerable legal costs and still be saddled with executors who cannot agree as to how to administer the estate. The negative effect on the beneficiaries of such a situation are obvious.

Where it is the beneficiaries themselves who fall out with executors, the Courts are prepared to consider this reason enough to remove them. In Khan v Crossland [2012], whilst a testator’s choice of executors was a relevant factor, it was not the decisive factor. An important, but again not the deciding issue, was that the beneficiaries were united in their desire to appoint an alternative executor. It was the specific nature of the breakdown in relations between executors and beneficiaries which was decisive. This serves to emphasise the case-specific discretion judges have in this area, making it an often unpredictable and expensive exercise.

So what can charities do to ensure that legacies they are left are received without issue?

As well as encouraging individuals to provide for the charity in their will, charities can play an important role in the education of their supporters. Impressing upon them the importance of making sure they chose the ‘right’ executors rather than the ‘safe’ ones can be just as important as the ultimate gift they receive. Fortunately, the ‘safe’ and ‘right’ individuals are often one and the same. It is when they are not, and a testator does what they consider ‘safe’ rather than what is ‘right’, that they can create wide-reaching problems long after they have gone.


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