Being involved in the administration of an estate after the death of a loved one can be extremely stressful at the best of times. However, when you and an executor, sometimes a close family member, are not seeing ‘eye to eye’ the situation can become impossible.
If this delays the sale of property and distribution of assets, it may be that the best way forward is to request the Court to remove one or more of the executors of the estate.
Sometimes the Court will decide the only way out of such a deadlock is to remove one or more of the named executors and appoint an independent person or professional in their place.
The decision the Court will make in such circumstances depends very much on the facts involved. To demonstrate this point, I have considered two recent case law decisions below, both with different outcomes.
Haynes –v- Andre and Haynes
The deceased, Yvonne Haynes, was a widow who was survived by her two adult children, Charles and Kathleen Haynes.
The issue before the Court was whether Kathleen should be appointed as an executor, in line with her mother’s wishes in her Will. Charles wished for the appointment of either himself or a professional executor, and opposed the appointment of Kathleen.
The Judge considered that before appointing a ‘professional’ independent executor the Court should bear in mind that “Introducing a new professional personal representative will inevitably increase the cost of administration significantly.” In this case the Judge found that the estate had “little or no money” to pay for such a professional.
The Judge believed that appointing a professional executor would be the correct approach if “without it the administration of the estate … will continue to be delayed or obstructed” but added that “friction and hostility between an executor and a beneficiary is not of itself a good reason for removing an executor”: it is only a factor to be considered.
The Judge felt that as a beneficiary it was in Kathleen’s interest to complete the estate administration, that there was no evidence that she had been impeding the administration of the estate and had sought and was receiving professional advice. He concluded that Kathleen should be appointed as the executor.
In the second case Mrs Wilby and Mr Rigby were both named as executors under their late mother’s Will.
Unfortunately, the pair were unable to work together to administer the estate, resulting in Mrs Wilby entering a caveat in 2012 preventing a Grant of Probate being obtained, which in turn prevented sale of her late mother’s house. Further disputes over administering the estate and how the proceeds of the sale of the house should be divided trundled on between 2012 and 2014.
Mrs Wilby submitted to the Court she was not happy for Mr Rigby to be sole executor. She proposed that she and Mr Rigby should renounce as executors and an independent executor should be appointed.
The Judge in this case stated “The two siblings do not get on and cannot work together. That is evidenced by the fact that three years on, there has been no progress of any concrete sort in the administration of their late mother’s estate.” In light of this he recommended the appointment of an independent executor.
Because of his refusal to accept Mrs Wilby’s offer to appoint an independent executor, Mr Rigby was ordered to pay her costs, in addition to his own, by the Court.
Points to Take Away
In cases such as these, the Court is principally concerned with whether the estate can be effectively administered. The fact that executors and beneficiaries or co-executors do not get on holds little weight unless the friction is preventing the estate administration from being progressed.
As can be seen from Haynes, the Court will be reluctant to remove executors and appoint a professional executor where the estate administration is being progressed simply because the parties do not get on. But, as shown in Wilby –v- Rigby, the Court will replace the executors when they consider the relationship between them is preventing the estate from being administered.
What is important to bear in mind is that the Courts, in any dispute of this nature, will be expecting the executors to attempt to resolve any dispute before a Court hearing and getting reliable legal advice as to your position and the best way forward is crucial. The consequences of a failure do so and to take reasonable steps to resolve a dispute can, as seen in Wilby-v- Rigby, be costly.