Journal

Tackling troublesome executors

Charlotte Black, Richard Sims, March 2009

Charlotte Black is a Barrister with Wilberforce Chambers. Richard Sims is a Legacy Officer at Help the Aged.

The beneficiaries of a deceased’s estate rely on an executor nominated in a will, first to take probate and second, to administer the estate efficiently and in accordance with his duties under s.25 Administration of Estates Act 1925 (AEA). Moreover, without action either on the part of the beneficiaries or the nominated executor himself, an executor will generally remain entitled to a grant of probate and to administer the estate in priority to anyone else (Non-Contentious Probate Rules 1987 (NCPR) r.20).

In practice, however, beneficiaries sometimes find themselves faced with an executor who, far from fulfilling his duties, turns out to be dilatory, uncommunicative, incompetent or simply wholly unsuitable for the job in hand. Where there is evidence of misfeasance or maladministration, proceedings against an executor for breach of duty or devastavit, for example, can obviously be considered. However, often beneficiaries are simply concerned to obtain information from an uncommunicative executor, or for the administration to be carried out or continued by someone else.

What follows, therefore, is a brief overview of the main courses of action that can be considered by beneficiaries, especially residuary beneficiaries, in order to address these concerns and, in particular, to entitle someone other than a troublesome executor to administer the estate.

Many of the points raised in this article will apply by analogy to all those entitled to administer the deceased’s estate, whether as administrators or executors. However, for ease of reference, we refer only to executors. It should also be noted that in many cases different rules and considerations will apply where the deceased died domiciled outside England and Wales.

Pre-grant

It is not always clear pre-grant that an executor nominated in a will is likely to be problematic, particularly where that executor is a professional. However, where trouble arises or is anticipated, the following routes can be considered.

Caveats

Often a sensible first step in preventing a grant of probate to an unsuitable executor is to enter a caveat, since it generally precludes a grant being made in respect of an estate (except grants ad colligenda bona or pendente lite). Indeed in some cases, such as citations, a caveat is a necessary precursor.

The procedure is mostly contained in NCPR r.44. Unless warned, caveats generally remain in force for six months, unless the registrar orders otherwise, although they can be extended for subsequent periods (see NCPR r.44(3)).

Renunciation

Renunciation is only an option where a nominated executor is cooperative, since he cannot be compelled to renounce. It is also only possible where an executor has not already intermeddled with the estate.

Where an executor is willing and able, however, for example where he simply wants nothing to do with the administration, he may renounce, effectively abandoning his right to a grant of probate (see AEA s.5(iii)). This allows the next entitled person (under NCPR r.20 – generally a residuary legatee), to take a grant.

The renunciation must be in writing, and whilst this can be done any time after a testator’s death, a renunciation generally accompanies an application for a grant by the person next entitled. Once made, a renunciation can be retracted but only with the leave of a district judge or registrar, and only in exceptional circumstances where probate has already been granted to someone else (NCPR r.37(3)).

Citations

Where renunciation is not an option, citations are a useful method of attempting to spur a delaying executor into action, or to entitle another to administer the estate. There are two main types to consider in this context: a citation to accept or refuse a grant, and a citation to take a grant.

First, where an executor has not intermeddled and cannot be persuaded to renounce (either because he refuses or has not been traced), but equally is taking no steps to obtain a grant of probate, he can be cited by the person next entitled to a grant to accept or refuse probate (NCPR r.47(1)). If the executor fails to appear or apply for a grant, the citor is entitled to apply for a grant to himself (NCPR r.47(5)(a); 47(7)(a)).

Second, in the slightly different situation where an executor has intermeddled in the estate (so that renunciation is impossible), but has not taken a grant within six months of death he may be cited by any person interested in the estate to show cause why he should not be ordered to take a grant (NCPR r.47(3)). If the executor fails to appear or apply for a grant, the citor may apply for an order requiring the executor to take a grant (if such an order is made and breached, the executor will be liable for committal), or for a grant to himself or someone else (NCPR r.47(5)(c); 47(7)(c)).

Care should be taken in issuing a citation where it is feared that the cited executor is, in fact, unsuitable to administer the estate, but where there is a good chance that he will respond to the citation by actually applying for a grant of probate. In such cases, an alternative course of action could be an application under s.116 Supreme Court Act 1981 to pass over an executor (see below). It is also sometimes possible to use the s.116 procedure rather than a citation when an executor cannot be traced, particularly if the estate is small.

The procedure for issuing citations is contained in NCPR r.46-50. Importantly, before a citation is issued, a caveat must be entered in respect of the estate (r.46(3)).

Passing over

Under s.116 of the Supreme Court Act 1981 the High Court may appoint someone other than a nominated executor (or any other entitled person) to administer the estate if it considers that by reason of any ‘special circumstance’ it would be ‘necessary or expedient’ to do so. Many practitioners will think of this in relation to passing over disputing co-executors or perhaps where there is a conflict of interest, but it is also useful where the executor is thought to be of bad character, or where he is unlikely to administer the estate properly (see e.g. Re Biggs Estate [1966] 1 All ER 358).

Often, it is only once an executor has taken probate and the administration of the estate has, or should have, commenced that problems occur

The application is generally made without notice to the District Judge or registrar, with a supporting affidavit, (NCPR r.52), which must disclose all material facts to the court, otherwise the grant could be revoked (Shephard v Wheeler (2000) Times, 15 February).

Grant ad colligenda bona

If the dispute looks set to rumble on for some time, it is advisable, especially in these days of economic uncertainty and plummeting house prices, to consider an application for a grant ad colligenda bona defuncti. This gives a limited grant of administration enabling the estate to be administered in the meantime for the purpose of preserving its assets. It is often possible for both executors and beneficiaries to agree to this emergency measure, but it is not always an appropriate course of action, and can be an expensive and time-consuming process. Moreover, it should only be used where there is a genuine risk to the estate, and not merely to ensure a tactical advantage – see Ghafoor v Cliff [2006] 2 All ER 1079. On the other hand, the judgment in Sifri v Clough & Willis [2007] WTLR 1453 was critical of the professional executors for failing to take this precaution. The efficacy of such an application must really be determined in the context of a particular estate.

Application for the grant must include a supporting affidavit in which the grounds for the application must be stated (NCPR r. 52). Unless the application is likely to be contentious it may be made without notice (see Ghafoor supra).

Post-grant

Often, it is only once an executor has taken probate and the administration of the estate has, or should have, commenced that problems occur, in particular where an executor is uncommunicative, slow and inefficient in the administration of the estate, or has fallen out with his co-executor or the beneficiaries. Ideally, of course, it is generally in everyone’s interests that disputes between executors and beneficiaries should be resolved amicably. However, where this approach fails, there are a number of relevant options to consider in order to obtain information from an executor, or ultimately to replace him.

Inventory and account

The least expensive and, in theory, the quickest way to compel an idle or uncommunicative executor to account for his activities is to apply for an order that he exhibit an inventory and account in respect of the administration (see AEA s.25(b)). This should be done by applying to the Probate Registry by summons supported by an affidavit (NCPR r. 61). Once obtained, the inventory and account can be examined by the beneficiary in order to assess whether any further steps are needed in respect of the executor.

Although the general orthodoxy seems to be that an application for inventory and account is the most efficient first step in resolving difficulties with executors, in some circumstances its practical benefit is debatable. There may be some situations where it is clear that even if the executor responds to an order to produce an inventory and account he will still be an unsuitable candidate to continue administering the estate. It may also be that an executor who has been particularly inert or unresponsive will equally fail either adequately or at all to respond to an order to produce an inventory or account. Whilst the order can, in theory, be enforced by committal, the beneficiaries may be more inclined to focus their energies on replacing such an unresponsive executor than on having him committed. In appropriate circumstances, an application under s.50 Administration of Justice Act 1985 to remove an executor could be considered, either after the order for an inventory and account has failed to produce an effect, or in clear cases, instead of applying for such an order.

Section 50

If all other attempts have proved fruitless, and the administration is not progressing to the beneficiaries’ satisfaction, they could consider applying for the executor to be removed or replaced under s. 50 of the Administration of Justice Act 1985.

A recent case in this regard is Heyman v Dobson [2007] EWHC 3503, where a residuary beneficiary brought an application under s.50 having been unable to obtain any response from the executor to requests for information regarding the estate. The case is a useful starting point when considering a s.50 application since the judgment reviews the little authority that exists in this context. What is clear is that whether a s.50 application will succeed is a matter for the discretion of the court and that the overriding considerations are broadly the proper administration of the estate and the welfare of the beneficiaries. Interestingly, it is not necessary to establish wrongdoing or fault on the part of the executor. The court will generally replace an executor where, for example, relations between him and the beneficiaries have simply broken down to such an extent that it is no longer possible to progress the administration of the estate properly.

It is generally widely recognised that in the vast majority of cases the appointment of a judicial trustee is an unnecessarily costly and convoluted process

If a s.50 application is not being made in the course of existing proceedings, it should be brought in the Chancery Division of the High Court using a Part 8 Claim Form, and supported by written evidence (see CPR Part 57). If there is more than one executor, the others must all be joined as parties, often together with the residuary beneficiaries. If a sole executor is being removed, a substitute should be sought otherwise the estate will be left unrepresented.

Judicial trustee

It is also still possible for a beneficiary to apply to the court under s.1 of the Judicial Trustees Act 1896 (JTA) for the appointment by the court of a judicial trustee to administer the estate either together with the current executor, or as a replacement. The judicial trustee is entitled to remuneration out of the estate by order of the court.

It is generally widely recognised that in the vast majority of cases the appointment of a judicial trustee is an unnecessarily costly and convoluted process, and a s.50 application to replace or remove an executor will be far preferable. As a result the jurisdiction under the JTA is now little used in this context. There are, however, two main caveats to this.

The first case where in certain circumstances an application for a judicial trustee may be more appropriate than a s.50 application is in the context of mutual wills (see Thomas and Agnes Carvel Foundation v Carvel [2007] 4 All ER 81).

The second is if the administration of an estate is likely to be particularly complex for some reason. In this case the appointment of a judicial trustee may be considered since they would have easier access to guidance and supervision from the court and can seek directions at any time (see Judicial Trustee Rules 1983, r.8). This is potentially not only more practical for all concerned, but may also act as a safeguard for the beneficiaries.

If the more usual application has been made to remove a current executor under s.50 AJA 1985, the court is expressly entitled to proceed as if the application were for the appointment of a judicial trustee if it thinks fit (and vice versa) (s.1(7) JTA 1896, s.50(4) AJA 1985).

Administration proceedings

Finally, the beneficiaries should have regard to CPR Part 64 by which the court has a wide-ranging jurisdiction in matters concerning the administration of estates. CPR PD64 paragraph 1 contains examples of the types of claims that may be brought, which include claims for an order requiring an executor to provide an account, which can be verified if necessary, and for an order requiring an executor to do or not to do any particular act.

In addition, under CPR Part 64.2(b) the court retains the ability to make an administration order by which the administration of an estate is effectively taken over by the court (rather than with the supervision of the court as with a judicial trustee).

Administration orders are now exceptional. This is reflected in the fact that under CPR PD64 paragraph 3.1 the court will only make an administration order if it considers that the issues between the parties cannot properly be resolved in any other way.

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