Removing a problem executor
A common source of conflict in the administration of an estate is the problem executor. So how can a charity remove a problem executor?
When a charity’s position is being seriously prejudiced by a problem executor, there may be no option other than to take steps to have that executor removed.
If a grant of probate has not already been issued, then the charity can consider asking the court to exercise its discretionary jurisdiction to pass over an executor pursuant to Section 116(1) of the Senior Courts Act 1981.
This power can be used where there are “special circumstances” that would justify that executor being passed over and it is necessary or expedient to do so.
Where a grant has already been issued then the court has the jurisdiction to remove an executor under section 50(1) Administration of Justice Act 1985.
Neither of these options should be pursued lightly, as the courts are generally reluctant to interfere with a testator’s choice of executor. The key consideration will always be whether removal is in the interest of the proper administration of the estate and would promote the welfare of the beneficiaries.
It is worth bearing in mind that friction or hostility between the charity and the executor will not be enough in itself to justify removal unless it is obstructing the administration of the estate.
As ever, the issue of legal costs should be uppermost in the minds of trustees. Removal proceedings can be very expensive and should therefore be regarded as a last resort.
Other options should always be considered. One tactic we often recommend is to apply to the Probate Registry or the court for directions to be given as to what the executor should and should not do. Although this still involves a court application being made, it is more straightforward than applying to remove an executor and it carries a much smaller risk of an adverse costs order being made against the applicant.
Any trustee needing guidance on, “How can a charity remove a problem executor?” is welcome to contact our free helpline. Call 0333 888 0439 for an informal chat or email [email protected]
