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Executor to ex-ecutor

Comply or be denied.

That was the strong message from a recent successful petition in the Court of Session’s Outer House to remove an executor of an estate.

This was a landmark ruling as previous case law made it clear this wasn’t something that would be done lightly.

Background

When you draft a will, you’ll appoint an executor, or executors.

These executors are responsible, when you die, of managing your estate and carrying out all the directions in your will.

Fairly straightforward. At least in theory.

Where there are joint executors, it’s not uncommon to see disagreements crop up and, even relationships between the executors break down.

But what happens when someone just won’t co-operate? That’s where this case sheds some light.

Here, the deceased had appointed her sons as joint executors. Initially, they had reached an agreement on how the estate’s assets would be distributed. This didn’t work out for various reasons and things began to go downhill.

Edinburgh property

One of the assets was the deceased’s property in Edinburgh and its contents.

It turned out one of his brothers had been living there while renting out his own property. He had changed the locks and had not given any of the others a key. Plus, he didn’t move out until after the petition for removal was brought against him, during which time he paid no rent to the estate, changed the property’s utility bills into his own name, and refused to allow the others to meet him at the home to fairly divide its contents, which were of sentimental value to all the siblings.

The court considered the executor failing to cooperate had benefitted from use of estate assets to the detriment of beneficiaries.

He lived in the Edinburgh property without paying rent, enabling him to rent out his own home for personal financial gain. That was a clear conflict of interest.

And, while he had paid some bills for upkeep of the property during that time, which might be charges on the estate to be paid before distributing residue, that didn’t entitle him to use an estate asset in this way.

It was further considered that, for the majority of the period of administration of the estate, this executor had behaved erratically.

He had frequently changed his mind on proposals, refused to deal with solicitors handling the estate, had not co-operated or refused to communicate with his co-executors or other beneficiaries, claimed that property worth more than one third of the residue of the estate was his, and unilaterally put the Edinburgh property on the market without the selling agents being properly informed there were other executors.

As a result, the court concluded the executor’s behaviour had resulted in deadlock in administering the estate and while he remained in post, it would not be possible for it to be divided as set out in the will.

His actions amounted to malversation of office — misbehaviour in a position of trust — and he was removed as executor.

This is an excellent example of how an executor’s actions can ultimately result in his removal of office. If someone in this position refuses to comply with co-executors and acts erratically, it could be enough to warrant removal.

Private client perspective

One of the partners in our private client team, Craig Pike, says this case highlights the importance of the role of the executor in dealing with the administration of an estate.

He says not only does it show an executor must always carry out the wishes of the deceased, they must also act in the beneficiaries’ best interests. Likewise, when a client is having a will prepared, it’s extremely important to appoint executors who you believe will act appropriately when the time comes, helping avoid issues like this.

Those taking on the executor role should be aware at the outset of their duties and responsibilities and should co-operate fully to manage the estate and the directions laid out in your will.

Or they may well run the risk of being removed.

Hollie Cavanagh

Hollie Cavanagh is a trainee solicitor based in our Aberdeen office.

Posted, 20 July 2021 by Hollie Cavanagh
Categories: Insights | Litigation | Private client