When a person dies, responsibility for the administration of their estate rests with an Executor appointed by their Will or a person who is later appointed as an Administrator if no Will exists.
These people are often also Trustees of the estate of the deceased and are charged with collecting the assets of the estate and dealing with its administration in a proper manner.
Invariably disputes arise between those with the responsibility for administering the estate and those who believe that they have an interest in it.
Equally, in circumstances where a Trust exists, it may be the case that beneficiaries come to disagree with decisions taken by the Trustees or actions that they decide to take.
In both cases it is usually possible to resolve those differences of opinion through discussion and agreement as to a way forward, but in some cases the tensions between the various parties will be too great and more serious action needs to be considered.
It is important to be clear that not every disagreement between beneficiaries and Executors/Administrators or Trustees will warrant the removal of those persons. Simply because a beneficiary disagrees with a course of action does not mean that the Executor/Administrator or Trustee has behaved incorrectly, and the Courts will not lightly replace a person in that role.
It is usually the case that an exchange of correspondence should take place to see whether the issues can be addressed and a sensible resolution reached.
In clear cases where an Executor/Administrator or Trustee has been guilty of some obvious wrongdoing that exchange of correspondence may be far shorter but in other cases where there is a genuine dispute as to facts between the two sides the exchange of correspondence may need to be longer to see whether those issues can be ironed out.
Fundamentally, anyone who is affected by the actions of a difficult Executor/Administrator or Trustee can consider a claim for their removal and that would include co-administrators/Executors and Trustees as well as beneficiaries. None of these disputes are uncommon, sadly and the Courts are increasingly used to seeing such problems arise.
In some cases, it is possible to agree with the Executor/Administrator or Trustee that they will stand aside and be replaced either by an alternative candidate or by a professional who may even be a Trust Corporation. A Court application is usually required so that an Order can be made, but if this can be dealt with by consent it helps to contain legal costs and certainly reduces the acrimony between the parties.
Such an agreement resulting in a Consent Order can also irradicate the risk on costs for either party and ultimately may allow the estate or Trust to continue to be administered in a more prompt and efficient manner since it will not be delayed by protracted and disputed Court proceedings.
If agreement simply cannot be reached, then one party will need to consider making an application to the Court for the removal of the Administrator/Executor or Trustee. At that stage, the person making the application for removal will need to set out the basis for their claim and put forward a proposed alternative candidate or candidates to take on the position if their application to the Court is successful.
The Court will wish to be assured that anyone who replaces a person who is being removed is suitable for the role, and it is usual to file a statement from an independent person confirming the suitability of the proposed candidate.
As an alternative, the Court may be invited to order that the Administrator/Executor or Trustee takes certain steps which themselves may serve to resolve the underlying dispute in any event.
In circumstances where Executors/Administrators or Trustees find themselves unable to get on with each other and one takes the step of making an application for removal of the other(s) it is sensible, usually, for the applying Executor/Administrator or Trustee to offer to stand down too in favour of a wholly independent appointment. The Courts do not enjoy having to arbitrate a dispute between the parties and make findings of right- or wrong-doing against one or other of those involved, and it is often a far more pragmatic approach to take for an independent third party to be proposed.
Claims are made to the Court by the issuing of a Claim Form supported by witness evidence, evidence of the suitability and willingness of any proposed independent appointment and a draft of the Order that is sought.
The Court will often issue directions (a timetable of steps) to ensure that the matter is ready for hearing when it comes before a Court and a trial may eventually take place if agreement cannot be reached in advance of that date.
The Court has a wide discretion as to how it deals with the costs of such an application. These may be ordered as payable by the person being removed, by the person making the application, or even from the Estate/Trust. Anyone bringing an application which is then unsuccessful may well be liable for the costs of the Administrator/Executor or Trustee in defending their position.
Claims of this nature can take quite a long time to resolve and could well delay the administration of the estate or Trust for a year or more.
Parties need to be very mindful of the fact that damage may be done to the value of the Estate or Trust in the interim if there is a genuine problem with the ongoing administration.
Interim orders are possible to allow certain steps to be agreed between the parties and taken by the current Administrator/Executor or Trustee, but nevertheless this is not a claim that should be brought to the Courts lightly.
It is usually sensible to seek the appointment of an independent professional if an Administrator/Executor or Trustee is being removed and replaced with a third party.
Such independent professionals have a vast wealth of experience in dealing with troublesome estates or Trusts and have the benefit of professional insurance also. They will be experienced in addressing the underlying issues that may have prompted the dispute in the first place, and can often serve a vital role in taking the heat out of an emotional situation.
Suspicions as to preference of one beneficiary over another or impropriety should be much more easily put to rest by the appointment of an independent professional.
If you would like further information about the possibility of removing an Executor/Administrator or Trustee or appointing one of our specialist team as an Independent Administrator, please do not hesitate to contact a member of the team here.
The information on this site about legal matters is provided as a general guide only. Although we try to ensure that all of the information on this site is accurate and up to date, this cannot be guaranteed. The information on this site should not be relied upon or construed as constituting legal advice and Howes Percival LLP disclaims liability in relation to its use. You should seek appropriate legal advice before taking or refraining from taking any action.
To contact us, please fill out this form and we will get back in touch as soon as possible. Your personal data will be processed in accordance with our privacy policy which can be found here.
Thank you for your enquiry. We will respond as soon as possible.
