A Judge at a criminal trial at Swansea Crown court is currently considering whether a mother and grandfather of two young women have stolen their inheritance.

Katherine Hill and her father Gerald Hill were trustees of a bank account, containing £50,000 left to granddaughters Gemma and Jessica Thomas by their grandmother Margaret Hill, who died in 2013. Margaret wanted Gemma and Jessica to share the inheritance when they turned 25. Their mother and grandfather instead allegedly emptied the account and spent the funds on themselves over the course of a year.

Technically the accused are being prosecuted for ‘fraud by abuse of position’. If found guilty, then it still may be necessary for Gemma and Jessica to take civil proceedings against their mother and grandfather to recover the £50,000.

It appears to be a shocking breach of trust…and it happens more often than you might think. It’s rare for a criminal prosecution to take place unless there has been blatant criminal behaviour. So, what can beneficiaries do when someone appears to have behaved badly in relation to the estate of someone who has died?

• What is an executor?
• How can an executor be removed from office?
• What happened in the 2021 case of Hudman v Morris?
• What did the court decide?
• What does this mean for executors?

What is an executor?

An executor is a person appointed by a will to administer a person’s property and carry out the provisions of the will. The person who made the will is known as a “testator”.

The legal duties of executors include but are not limited to:

• Putting the interests of the beneficiaries ahead of their own;
• Acting reasonably and prudently in relation to the estate;
• Protecting the estate assets;
• Selling estate assets; and
• Distributing the net estate to the beneficiaries in accordance with the will.

They will usually need to take out a ‘Grant of Probate’ which allows them officially to sell a property, close bank accounts and so on. If there is no will, then the ‘intestacy rules’ apply and the person who takes out the Grant is called an Administrator.

How can an executor be removed from office?

A person may “renounce” as an executor, which means that they resign from their office, but they can only do so providing they haven’t taken out a Grant of Probate and they haven’t already accepted the office by “intermeddling” – taking action –  in relation to the estate.

But what if an executor wants to act, but there are concerns as to whether they can be trusted to do their job properly, or they have acted badly in some way. In such circumstances, their instinct may well be to seek to remove the executor. The court does have the power to substitute or remove an executor from office under section 50 of the Administration of Justice Act 1985.  Also, under section 116 of the Senior Courts Act, the court has the authority to “pass over” an executor, which means that it has the complete discretion to appoint another person to administrator the estate. However, such applications are difficult to win as the court will be very reluctant to remove someone that the deceased chose to act for them. It is a hostile application that would usually be contested and as a result will be costly. An application to remove should only be considered as a last resort. If it fails, the beneficiaries are likely to be punished by being ordered to pay the executor’s legal costs. There are other less ‘full on’ options which should be explored first, including a ‘summons for inventory and account’ and an application to Court under Part 64 of the Civil Procedure Rules.

What happened in the 2021 case of Hudman v Morris?

In 2014 Barry Morris agreed to reimburse one of his sons, Roger, the sum of £2,836.48 to compensate him for his expenses for a visit to Australia.

Two years later in 2016, he made a Lasting Power of Attorney, appointing another son, Alan, to be his attorney. Roger contested this appointment and the legal costs, shockingly, came to some £100,000. The result of those proceedings was that the Lasting Power of Attorney was revoked, and a solicitor was appointed by the court as a deputy to manage Barry’s affairs in Alan’s place. The court also gave the solicitor the authority to reimburse Roger for the expenses.

Before the solicitor could pay those expenses, Barry sadly died. He left a will leaving his estate to his children and appointing his wife, Sharon and, unfortunately, Alan as the executors.

Alan, now in control of Barry’s estate as an executor, strongly opposed reimbursing his brother Roger for the expenses from their father’s estate. For this and several other reasons, all of Barry’s other children wanted Alan to be removed as executor.

Their mother, Sharon, sought the intervention of the court to either remove Alan from his position as executor, or alternatively to ‘pass him over’ and appoint a new administrator.

What did the court decide?

The court considered Alan’s ‘intense and ill-founded hostility’ towards his siblings and the complete breakdown of their relationships and decided that the Alan’s behaviour posed a threat to the administration of the estate if he were to continue to act as an executor. His behaviour in relation to the expenses and in relation to the deputy during the deceased’s lifetime were irrational.  The court felt that Alan was putting his own personal views and interests ahead of those of the estate, leading it to conclude that Alan could not “be trusted to act fairly and conscientiously, and to administer the estate impartially in the interests of all the beneficiaries”.

The court proceeded to remove both Alan and Sharon from their offices and appointed an independent administrator to conclude the administration of the estate.

What does this mean for executors?

The court focused on Alan’s behaviour towards his siblings and the breakdown in relations between them. The court was prepared to appoint a professional administrator, the cost of which would have to be met by the estate, even in circumstances where:

• The estate was relatively small; and
• There was very little to do to conclude the administration of the estate.

Whether you are a beneficiary or an executor, if you have concerns about an executor’s duties and need advice about the steps you can or should now be taking, please get in touch with Ridley & Hall for a free initial no obligation chat on 0800 860 62 65.

Sarah Young – Director & Solicitor