As the person appointed by a testator to with carrying out the wishes outlined in a will, an executor plays a pivotal role in the administration of an estate. However, if an executor fails to adhere to the instructions laid out in the will, it can lead to confusion, frustration, and legal complications. Here’s what occurs when an executor does not follow the will in the UK:

• Breach of Duty: Executors have a fiduciary duty to act in the best interests of the estate and its beneficiaries. If an executor fails to fulfil their responsibilities or acts contrary to the terms of the will, they may be deemed to have breached their duty.
• Legal Consequences: Executors who do not follow the will may face legal consequences, including being held personally liable for any losses incurred by the estate or its beneficiaries as a result of their actions or inactions. This could include financial penalties or removal from their role as executor.
• Challenging the Executor’s Actions: Beneficiaries or interested parties who believe that an executor is not fulfilling their obligations or is acting improperly have the right to challenge the executor’s actions through the courts. This may involve seeking an order from the court to compel the executor to carry out their duties or to remove them from their position.
• Accountability: Executors are required to keep accurate records of their administration of the estate, including details of any decisions made and transactions conducted. If beneficiaries have concerns about the executor’s handling of the estate, they can request an account of the executor’s actions to ensure transparency and accountability.
• Seeking Legal Advice: If you believe that an executor is not following the will or is acting in a manner contrary to their duties, seeking legal advice from a solicitor specialised in probate and estate administration is advisable. A solicitor can assess the situation, advise you on your rights and options, and help you take appropriate action to address any concerns.

Ultimately, the role of an executor is one of trust and responsibility, and it’s essential for them to carry out their duties diligently and in accordance with the wishes of the deceased. If an executor fails to follow the will, beneficiaries have legal recourse to ensure that the estate is administered properly and that their interests are protected.

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Most people accept the position of Executor of a person’s Will with a limited idea of the legal responsibility of the job and the amount of time that needs to be spent on fulfilling the required duties of the role. Probate disputes can swiftly erupt in cases where an Executor has a conflict of interest, is not progressing Probate, and/or keeping secrets regarding the whereabouts of certain assets (and these are merely a few examples). In such cases, you may wish to have the Executor removed.

Removing an Executor (sometimes referred to as a Personal Representative) can be a traumatic process for everyone involved as the Testator normally appoints a close relative or friend to undertake the role. Expert legal advice is necessary. An experienced Solicitor will advise you not only on whether you can remove the Executor but also, after weighing up the costs and benefits, whether it is worth pursuing such an action, both in terms of financial and emotional cost. Furthermore, they will explore every avenue of alternative dispute resolution, for example, mediation, and only pursue litigation if all alternatives have been exhausted.*

What are the most common grounds for removing an Executor?

Executors are typically removed because:

• They have not administered the Estate correctly, for example, they are too slow in advancing Probate or have misappropriated funds.
• Conflicts of interest. In the recent case of Re Estate of McDonald (Deceased) [2022] EWHC 2405 (Ch), the Court refused to pass over or remove an Executor on the grounds that there was a conflict of interest because the conflict arose from the Testator’s own decisions to make the Defendant both the beneficiary of a lifetime trust and subsequently Executor of the Will. However, the Court did remove the Executor on the grounds of ‘special circumstances’ under section 116 of the Senior Courts Act 1981.
• Lack of mental or physical capacity to undertake the role or to perform the duties associated with the position.
• The estate’s assets have not been protected, which has resulted in a loss in value.

The fact that the Executor and Beneficiaries do not get on is not normally sufficient reason to remove an Executor; however, in the case of Harris v Earwicker [2015] EWHC 1915 (CH), the Court ruled it was appropriate to order the removal of one of three Executors appointed under a Will, due to the total breakdown of relations between that Executor and the deceased’s children, who were the Will’s Beneficiaries.

Is it easy to remove an Executor of a Will?

If you bring a negligence claim against an executor, you may also want them removed from their role. However, this is not always easy.

In the case of Kershaw v Micklethwaite [2010] EWHC 506 (Ch) Justice Newey** (as he then was) confirmed that “if anything, the court should remove a trustee more readily than an executor”.
The Court can only remove an Executor under the law provided by a statute – they have no inherent jurisdiction to take such action. The relevant Acts are:

• Section 116 of the Senior Courts Act 1981 – This provision is used to overlook the named Executor before a Grant of Probate is obtained and to appoint an alternative administrator. Any interested party can make this application, not just Beneficiaries and Creditors; for example, someone with a claim under the Inheritance (Provision for Family and Dependants) Act 1975 or for proprietary estoppel.
• Section 50 of the Administration of Justice Act 1985 – Applications under this provision can be made before or after the Grant of Probate by the Executor or Beneficiaries. This provision is used to remove or substitute an Executor, including when the Executor retires or leaves the position.
• Section 1 of the Judicial Trustees Act 1896 – Although rarely used, this provision allows the Court to appoint a Judicial Trustee to administer the Estate. The Judicial Trustee is an officer of the Court and acts under the Court’s direction.

The welfare of the Beneficiaries is the Court’s starting point when exercising its discretion to replace an Executor. However, in Letterstedt v Broers [1884] 9 App Cas 371, Lord Blackburn made clear that “the acts or omissions must be such as to endanger the trust property or to show a want of honesty, or a want of a proper capacity to execute the duties, or a want of reasonable fidelity”.

Ultimately, the Court must consider that the deceased chose the Defendant to act as their Executor; therefore, they should only be removed if the circumstances are serious, for example, there is clear evidence of negligence or a conflict of interest.

Concluding comments

Like all disputes involving Wills and Probate, removing an Executor is not easy. Testamentary freedom, which is the freedom to leave one’s Estate to whom one wants, extends to choosing who one likes to be one’s Executor. Therefore, it is crucial to seek legal advice from a law firm that has a Disputes Resolution team who can ensure your best interests are protected, and your decisions are made after being given all the relevant information.

If you believe the Executor of a Will in which you are a Beneficiary should be removed, please talk to our Contentious Probate team. We will advise you honestly on the options available and the chances of you succeeding in a challenge.

We can usually work on a No Win, No Fee arrangement.

We can get it sorted. 

It’s what we do. 

Call us.  It’s free to ask.

*In some cases, for example if there is a history of abuse in the family or one of the parties displays controlling and/or narcissistic tendencies, alternative dispute resolution methods may not be appropriate, and litigation is inevitable. If this is the case, your solicitor will ensure you are supported throughout the entire process.

**At the time of writing The Rt. Hon. Lord Justice Newey, is a Lord Justice of Appeal.