There are many reasons why you might want to remove an executor from your family’s Will proceedings. In a previous post we discussed the lengths you could take in applying to the court for removal. But there were other methods too – such as asking them to renounce their position or cite them to refuse.
If you do apply to the court for removal then there are certain grounds you can use in your application as evidence to suggest she or he is unfit to carry out the role.
Grounds for the executor’s removal
There are various reasons you can employ, such as proof that he or she is no longer mentally or physically capable of carrying out executor duties. Or, if could be along the lines of a claim that the executor isn’t managing the estate as they should eg not physically securing property or allowing huge sums of interest to build up. It could be that they haven’t even started executing the Will.
Replacing the executor
If is decided that the executor is to be replaced, then this must be done in accordance with the court (Non-Contentious Probate Rules 1987). If there is a Will already drawn up, then this is done under the dictates of Rule 20. If no Will is issued, then it is under Rule 22. In other words, an annoyed beneficiary can’t just appoint whoever he or she likes to execute the Will. Instead, an independent administrator is usually given the role – one whom the court appoints.
If the application is under Rule 47 and the person making it is lower down the order of priority, then those above him or her can take out the Grant of Probate if the executor doesn’t appear.
Breach of Trust by an executor
When an executor is removed then he or she may have to pay court costs. But that isn’t the end of their problems. That’s because the beneficiaries of the Will may also make a claim for breach of trust (devastavit). Certainly, that could well be the case where there has been negligence or maladministration and funds have been lost as a result.
The type of issues that would constitute a breach of trust include assets being transferred to the wrong person (ie not the individual named in the Will) or it may be that particular legacies are paid out wrongly. Other breaches of trust could be paying out expenses from the wrong legacy or giving out estate funds without paying the necessary estate expenses.
Who pays the court costs?
How expensive the costs of removal of an executor will be depend on whether or not the application has been contested.
A successful application to remove an executor means the costs of the court are paid for by him or her. This can be substantial and, as such, it’s a good incentive for the executor to go ahead and carry out the role as they have asked to do.
It may be though that the administrators of the estate have agreed to pay the executor’s court costs with the proviso that he or she doesn’t contest the removal.
If the executor refuses to relinquish their role then they could be faced with a large bill at the end of the day if they lose the case. It would involve not just their own court costs, but also those of the applicant.
