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What happens if an executor fails to follow the terms of a Will?

View profile for Jordan Davies
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Mental capacity - a case law review - Tociapski v Tociapski

Being appointed an executor under a Will is an important role but it can also be thankless task at times. Executors are subject to several duties, with the most important being to act in the best interest of the estate and it’s beneficiaries.

An executor will generally be required to collect in estate assets and distribute the estate between the beneficiaries, in line with the terms of the Will. Whilst this may sound like a simple task, it can be challenging, and things can go very wrong.

Sometimes executors are appointed under a Will and do not necessarily know one another or get along with one another. This can result in disagreements between the executors in how to handle estate administration, often leaving the beneficiaries as the ones who suffer.

Other issues can arise when an executor is also a beneficiary, which is commonplace. Sometimes, a beneficiary executor may try to manipulate estate administration to benefit them more so than other beneficiaries – a clear breach of their executor duties to act in the best interest of the estate and all beneficiaries and distribute the estate in line with the terms of the Will.

If you do find yourself falling into a dispute with an executor, it is important to keep good records of your discussions with them. If they are not acting in line with the terms of the Will, the issue should be raised with them directly, ideally in writing, so that you can refer back to it if needed.

If you are unable to resolve the issue with the executor directly, it may become necessary to apply to the court to have them removed as an executor. How you approach asking a court to remove an executor will depend on whether probate has already been granted and whether they are named as sole or joint executor. It will also help if there is more than one executor, meaning that the removal of the problem executor will not leave the estate without a representative.

A court will consider the executor’s conduct and review whether they have complied with the terms of the Will and how the executor has dealt with any complaints from their co-executors or beneficiaries.

Where there are disputes between joint executors, a court may look towards resolving the dispute by removing the executors and appointing an independent administrator to manage the estate administration moving forward. Where there is only one executor, the court may appoint another lay-executor to replace the problem executor. This will be at the courts discretion. Naturally, there are cost consequences to each of these approaches, making amicable resolution the first point of call. 

Whilst the removal of a problem executor may sound simple, it is not always straight forward, and courts can be reluctant to remove an executor. This is due to the courts not wanting to go against the testator’s wishes. The testator provided a Will detailing who they wished to appoint as executor and the decision to go against this express wish is not taken lightly. If you are looking to remove an executor, it will be necessary to present a convincing case to the court.

It is essential to seek advise early on, to ensure that you are acting in the appropriate manner. If you feel that you may need some advice, please do get in touch with our specialist contentious probate solicitors on 0161 696 6178.