An executor (also known as a personal representative) is someone who has been appointed in a Will to deal with the administration of a person’s estate after they have died. An executor’s role involves collecting in the estate assets (e.g. closing bank accounts and selling property), paying any debts or liabilities and then distributing the estate to the beneficiaries. The beneficiaries are the people who ultimately stand to inherit under the Will. Sometimes disputes can arise between executors and beneficiaries, in particular when a beneficiary is concerned that the executor is not carrying out their role properly.
If necessary, a beneficiary can apply to Court to have an executor removed and someone else appointed in their place. When considering whether or not to remove an executor the Court will focus on what is in the best interests of the beneficiaries of the estate collectively, and whether the executor can carry out the estate administration properly.
It is important for beneficiaries to remember that they do not have the right to demand that an executor be replaced. The person who died chose them specifically. An executor can remain in their role even where there has been a breakdown in the relationship between the executor and the beneficiary, but if the hostility between the parties is so bad that it will make the estate administration difficult or impossible then the Court may well replace the executor.
In the recent case of Brinner v Brinner the Court had to consider whether hostility between one of the beneficiaries and the executor, together with a potential conflict of interest on the part of the executor, was sufficient to justify the executor’s removal.
In this case Feige Brinner made an application to remove her step-son, Avigdor Brinner, as the executor of the estate of her late husband. Feige argued that her husband’s estate was larger than Avigdor had declared, and that Avigdor had not properly investigated matters because of a personal conflict of interest. Feige also pointed to the deep-rooted hostility between herself and Avigdor. For example, he had said in a witness statement that she was not “a loving and caring stepmother” and had written in a letter that she had brought “shame” on her late husband and on her own father.
The Judge emphasised that hostility between an executor and a beneficiary will not automatically lead to an executor’s removal, saying:
“Hostility between a personal representative and a beneficiary is not per se a reason to replace the personal representative, the hostility must put at risk the proper administration of the estate.”
However, the Judge was persuaded that the executor’s hostility would likely affect how he dealt with investigating Feige’s claims and how he would ultimately approach any litigation with her. The Judge said that it was a finely balanced case, but he was persuaded to remove the executor. In reaching his conclusion the Judge stated:
“This is a case where there is a good deal of suspicion and ill-will between the Claimant and the executor of her husband’s estate… it is fair to say the First Defendant could have difficulty acting neutrally and approaching any litigation with the Claimant in that spirit”.
One of the factors which persuaded the Judge that the executor would struggle to act neutrally was the “highly emotive tenor” of the executor’s criticism of Feige. This is a stark reminder to executors to be mindful of the content and tone of what they write to beneficiaries in letters, emails, WhatsApp or any other social media and to think carefully about whether they are allowing personal feelings to cloud their decision-making.
If you require any advice regarding these issues then please get in touch and a member of our private wealth disputes team will be happy to help.