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Problematic Executors

Posted by Alastair Goggins

07-07-2015

In a perfect world, the appointment of more than one executor would provide a ‘sounding board’ when decisions needed to be made and increase the likelihood of fair decision making. However, in reality the appointment of more than one executor can lead to conflict. When conflict arises, it can be inconvenient for the administration of the estate because of the resulting delays, increased costs and stress to all interested parties.

This depressing, but all too familiar, scenario more often than not involves warring family factions, who may well be following hidden agendas, struggling for control and determined to settle old scores. Charities can sometimes find themselves caught in the cross-fire. Estate assets can be tied up for years as the dispute between personal representatives rumbles on.

However, things are not always straightforward when only one executor is appointed in the will. A sole executor may be quite elderly, live abroad, or be in poor health but still determined to fulfil the obligations imposed on them when the will was drafted many years prior.

If that executor is not coping with the job, but refuses to accept that problems are escalating, a beneficiary can make an application to the Court for them to be replaced. Likewise, if two or more executors are unable to agree on a course of action and no progress is being made, something must be done to break the deadlock. The procedure differs depending on whether the Grant of Probate has been obtained or not.

If the Grant has not yet been obtained, an application to ‘pass over’ one or more named executors in the will can be made. Any interested party can make such an application to the Probate Registry or a Judge at the Principal Probate Registry under Section 116 Senior Courts Act 1981. This requires them to serve a summons and at least one Affidavit in support, requesting that someone other than the person(s) entitled to take the Grant be appointed. The Court can only appoint someone else if ‘special circumstances’ can be shown. These include situations where the party entitled under the Will is considered unfit or inappropriate to act, and would put the estate at risk, due to e.g poor previous financial dealings, mental health problems, bankruptcy etc.

Normally the application is heard on written evidence alone (which has proved to be the case in my experience) although it is possible for the court to hear cross examination and in some instances for the matter to be transferred to the Chancery Division of the High Court for a contested hearing.


Alastair Goggins

Partner
Head of Dispute Resolution Team
Head of Charity Team

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