After someone dies, others must take responsibility for dealing with and distributing the estate of the deceased. If the deceased has a Will, this person will be referred to as an Executor. It is an Executor’s duty to carry out the wishes of the deceased and distribute their assets according to the terms of the Will.
Where more than one Executor has been appointed, they must act jointly. It is usually the case that the distribution of assets runs smoothly with both Executors working together efficiently, however, emotions and tensions can sometimes get in the way and create conflict. Such conflicts may include arguments as to whether certain assets should be realised or sold, maybe one Executor acts unreasonably, or they do not get on with the administration and so progress is delayed. In cases where an individual involved has acted unreasonably, a claim could be brought against them. Sometimes conflicts are unavoidable due to the sensitivity of the situation.
If difficulties do arise because of a conflict between Executors, there are numerous ways in which it can be resolved. The best solution will ultimately depend on the circumstances. It is worth noting from the outset that removal of an Executor is the last resort.
Firstly, it is important to state that it is strongly encouraged to resolve disputes outside of Court. The Courts take a dim view of parties who rush into Court proceedings without exploring other means of resolving a dispute first. Cost orders can be made against parties who do not make enough effort to consider alternative dispute resolution (ADR).
The simplest way to begin would be to open up some sort of communication between the Executors. This can allow the parties to explore whether it is possible to resolve things amicably. This should be done through setting out details of the issues and explaining how you feel they can be resolved. Even if the conflict is not resolved in this way, it will display to the Court that you have acted reasonably and there will be a paper trail for you to prove this.
If Executors cannot work together, then one solution might be for one of the Executors to renounce their position or agree that a Grant might be issued with “power reserved” to that person. This can be done as long as the Executor renouncing has not intermeddled with the deceased’s estate in any way and no Grant of Probate has been issued.
If a route to dealing with the conflict cannot be agreed, then alternative dispute resolution (ADR) methods can be considered to try and find a solution.
The types of ADR include the following:
If the conflict can still not be resolved, the courts may look at removing one or more of the Executors.
An application to remove an Executor is an application of last resort.
The Court will be more inclined to order that an Executor be removed if it can be demonstrated from the correspondence that the parties are incapable of reaching an agreement and there is no other choice. Courts will not easily order the removal or replacement of an Executor, and may consider replacing all the Executors if a dispute arises.
An application to remove an Executor may be made by another Executor or even by a beneficiary. In such an application, the Court has discretion to do either of the following:
Anyone who is affected by the actions of the problematic Executor or the conflict that arises as a result. This includes Co-Executors as well as beneficiaries.
Get in touch
Conflicts and disagreements can arise between Executors or between Executors and beneficiaries. Usually these can be resolved, but if they continue to cause problems or delay, there are several ways in which such a dispute can be resolved.
Our specialist Contentious Probate team are here to help if you need to deal with problems that arise with Executors. We act for Executors and beneficiaries alike and have a wealth of experience in working to resolve the issues.
We always try to engage with the other parties and will work hard to avoid the need to go to Court wherever possible.
If you have any questions or concerns, please contact Max Campbell on[javascript protected email address][javascript protected email address] for a no-obligation initial discussion about your situation and how we can help.
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