December 2019 – When Executors Go Rogue

Author: Mitchells Roberton
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  • The recent case of Baynton-Williams v Baynton-Williams ([2019] EWHC 2179 (Ch)) in England flags up the importance of taking care not to inadvertently mislead the court in preparing a witness statement and the importance of expert witnesses complying with their duties to the court.
  • But it’s also of interest in flagging up the differences in approach between England and Scotland when it comes to removing executors who refuse to take the proper steps in administering a deceased’s estate.
  • Of course, where two or more executors are appointed to deal with the administration of a deceased’s estate they usually manage to get the job done. But sometimes there can be a stalemate. The question of removing an executor from his or her office as executor may then come up.

Outline of the facts of the English case 

  • Margaret Baynton-Williams died without leaving a will and her estate fell to be shared equally between her two sons Miles and Ashley under the law of “intestacy”. Miles and Ashley were both appointed as “administrators” (what we would call “executors”) of their mother’s estate.
  • Ashley moved into his mother’s house and, against the wishes of his brother and co-executor, remained there following his mother’s death in 2013 until 22nd June 2015 when the house was sold.
  • Miles sought Ashley’s removal as “executor” and for him to account to the estate for his rent-free occupation of the house and, on 21st August 2018, the court agreed to do so.

Removal of an “executor” under English law 

  • Under English law the court has statutory power to remove an “executor” (under section 50 of the Administration of Justice Act 1985).  In particular, if the administration has come to a standstill because relations between the “executors” have broken down, or relations between the “executors” and the beneficiaries have broken down, the court will ordinarily remove the executors, and appoint new ones to enable the administration to be completed.
  • It is not necessary to establish fault by the “executor” to obtain his removal. If, for whatever reason – such as clash of personalities, or the lack of confidence in the “executors” by the beneficiaries – it has become impossible or difficult for the administration to be completed by an existing executor, then the court will usually make an order for removal. 

The position under Scots law 

  • Under Scots law things are rather more problematic. In Scotland, there are three ways in which an executor may be removed from office.

First

  • There might be power under the terms of the deceased’s will for removal. But it would unusual for such a power to be included in a will.

Second

  • There is statutory power for the court to remove an executor under the Trusts (Scotland) Act 1921. But this power only applies in certain particular situations: the court may remove a trustee who is or becomes insane or incapable of acting by reason of physical or mental disability; or who is absent from the UK continuously for at least six months; or who has disappeared for the same period.
  • In the case of insanity or mental or physical incapacity, removal is automatic once the ground is established. In the case of an application on the ground of absence or disappearance for at least six months, removal is at the court’s discretion.

Third

  • There is “common law” power for the court to remove executors (or trustees) under what is called the nobile officium of the Court of Session in Edinburgh.
  • The test for the exercise of this power is that the court should be satisfied that the beneficiaries would be prejudiced or the purposes of the will obstructed if the executor were to continue in office.
  • This is quite a high test to meet and it does involve a petition to the court in Edinburgh.

The future

  • The Scottish Law Commission have proposed reforms to modernise the way in which an executor may be removed. In essence the Commission proposed that the statutory powers under the  1921 Act and the “common law” grounds for removal of trustees should be replaced by new statutory provisions.
  • These should provide that an executor (or trustee) may be removed by the court, on application, if it is satisfied that he or she is unfit or unable to continue to act or they have neglected their duties as executor.
  • That would be a welcome reform. But the proposal was made by the Commission in 2014 and there is as yet no sign of its being taken forward.

Note: This material is for information purposes only and does not constitute any form of advice or recommendation by us. You should not rely upon it in making any decisions or taking or refraining from taking any action. If you would like us to advise you on any of the matters covered in this material, please contact Paul Neilly: email pdn@mitchells-roberton.co.uk

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