Grounds For Hostility? The Removal Of Executors And The Jimmy Savile Charitable Trust – Re Savile (Deceased) [2014] EWCA Civ 1632

Introduction

Testators have the freedom to choose who they want to be the executors of their estate, whether this be family members, friends, professionals or even charities. The court is generally reluctant to interfere with the testamentary freedom of a deceased testator without justification.

Sometimes during the administration of an estate, executors and beneficiaries find themselves engaged in personal conflict and a hostile situation ensues, preventing the timely distribution of the deceased's assets. This is not solely confined to situations between squabbling siblings; there are a number of cases whereby beneficiaries do not agree with the actions being taken by independent or professional executors.

One such estate which has recently been under media scrutiny is that of Jimmy Savile, who died on 29 October 2011. The recent Court of Appeal decision in Re Savile (Deceased) serves as a warning to beneficiaries of the threshold required to remove an executor from his office, and the cost implications of getting it wrong. There are lessons to be learnt from the actions taken by the trustees of the Jimmy Savile Charitable Trust, and charities should bear in mind the practical alternatives to court application ns when dealing with conflicts (or potential conflicts) with executors.

Why would an executor be removed?

Not all removals of executors are contentious; individually named executors may have personal or professional reasons for retiring as an executor, perhaps due to realising their inexperience or their unsuitability for the role, and will agree to step down by consent. There are statutory grounds by which an executor may be removed, such as the executor's refusal to act, being incapable to act by reason of illness or mental incapacity, or by bankruptcy. Further, there may also be grounds for removing executors where they have not administered the estate within a reasonable time or have caused undue delay.

Executors can be removed from their office if they are found to have been guilty of misconduct in their role. There are also situations which arise where executors end up in personal conflict with each other or with the beneficiaries of the estate, meaning that the administration of an estate cannot continue.

In special circumstances, the court has the power under s.116 of the Senior Courts Act 1981 to 'pass over' a nominated executor if it considers that it would be necessary or expedient to do so. The court has held that this...