The recent court decision in Hudman v Morris, resulted in the removal of two executors from their office and the appointment of an “independent administrator” to administer a relative’s estate.

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”. An executor has a legal duty to collect in all the assets of the testator’s estate, settle the debts and then usually, to pay out the remainder to the beneficiaries named in the will.

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” in the estate.

But what if an executor wishes to carry out their office, but there are concerns as to whether they can do their job properly, or are not doing their job properly at all? The beneficiaries may see trouble on the horizon or, may feel that the executor has already overstepped the mark. In such circumstances, they may want to have the executor removed. The court has 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 as the administrator of the estate, in place of the troublesome executor. However, such an application is very much a last resort and not one to be made lightly. If it fails, the beneficiaries are likely to be punished by being ordered to pay the executor’s costs.

What happened in the recent case of Hudman v Morris?

The problems in this case started when relations between Barry Morris’ family members began to break down before he even passed away.

Barry 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 brought a legal challenge to contest the Lasting Power of Attorney, the costs of which, 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 The result of those proceedings was that the Lasting Power of Attorney was revoked, and a solicitor was appointed by the court as a deputy to manage Barry’s affairs in Alan’s place.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 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 the other children wanted Alan to be removed from his executor post.

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 decision shows how the court will not hesitate to appoint a professional administrator, the cost of which will need 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.

It is easy to overlook the legal duties by which executors are bound, which 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.

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, get in touch with Ridley & Hall for a free initial no obligation chat on 0800 8 60 62 65.

James Urquhart Burton – Partner & Solicitor