When do executor disputes cross the line into legal grounds for removal? Nicola K Smith explains what to consider in her weekly look at dealing with disputes.
Removing an executor isn’t something anyone wants to do lightly but sometimes, it’s essential. When tensions run high or administration grinds to a halt, families and professionals alike often ask, can we remove them? Should we? What’s the cost?
Here are five key points you need to consider.
- When things go wrong
Executors have a duty to act in the best interests of the estate, not themselves, not one beneficiary over another, and not based on old family loyalties. But what happens when that duty is breached?
You might see:
- Administration delays.
- Failing to communicate with beneficiaries.
- Withholding key documents.
- Selling assets without agreement.
- Conflicts of interest.
These red flags can result in financial loss, legal risk, or total deadlock.
- Legal grounds for removal
Under Section 50 of the Administration of Justice Act 1985, the court has discretion to remove or substitute an executor. You don’t need to prove bad faith, just that it’s no longer in the interests of the estate or beneficiaries for that person to continue.
Common grounds include:
- Total breakdown in trust between executors.
- Inactivity or delay.
- Hostile relationships with beneficiaries.
- Conflict of interest (for example an executor is also a beneficiary under challenge).
The court’s test is pragmatic: will this person properly administer the estate going forward?
- Practical considerations
Before applying to court, it’s usually best to:
- Attempt resolution via correspondence or mediation.
- Set out concerns clearly in writing.
- Consider a pre-action warning shot under the Civil Procedure Rules.
Applications are made to the High Court and must be supported with evidence. This might include:
- Letters or emails demonstrating failure to act.
- Witness statements from other executors or beneficiaries.
- Expert valuations if assets are being mismanaged.
- Timing matters
It’s often harder to remove an executor after a grant of probate has been obtained. If concerns are raised pre-grant, you may have additional options like entering a caveat or filing a warning to delay or prevent a grant to the wrong person.
Strategic early action can avoid entrenched positions and rising legal costs.
- What about the cost?
Executor removal claims can be expensive but, in many cases, costs may be paid from the estate. This depends on:
- Whether the challenge was justified.
- Whether the executor acted unreasonably.
- Whether alternative resolution was attempted.
If costs are a concern, you should also consider Beddoe relief, which protects personal liability for costs when acting as executor.
Final thoughts
Section 50 isn’t just a last resort – it’s a vital tool to protect estates and beneficiaries when things go wrong. In practice, executor disputes often straddle both contentious and non-contentious work, and early intervention can make all the difference.
About the author
Nicola K Smith is a senior associate in the specialist Contentious Trusts, Probate and Court of Protection team at Forbes Solicitors, based in Manchester. With over 12 years of litigation experience, she now focuses exclusively on disputes involving the administration of estates, trusts and the affairs of vulnerable individuals.
