Removing An Executor From A Will (9 June 2023)

• Published date: 20 June 2023
• Subject Matter: Family and Matrimonial, Wills/ Intestacy/ Estate Planning
• Law Firm: Duncan Lewis & Co Solicitors
• Author: Caroline Roche

One of the most frequent instructions we receive is a request to remove an executor or executors from a will. This decision is arrived at for a variety of reasons but the most cited reason is based on a breakdown of trust between the executor and beneficiaries particularly where relations had soured even before the death of the testator or testatrix who made the will.

This often leads to a situation whereby the beneficiaries are concerned that the executor will not provide a full and proper account of their dealings with the estate or there is a real risk the Executor will dissipate the estate funds thus leaving the beneficiaries without their inheritance. We also see in practice a situation whereby relations between the executors themselves sour thus frustrating the administration process and preventing its proper conclusion with neither executor willing to renounce their role as executor.

Evidently, the first approach is always to seek a resolution between the beneficiaries and the executors since not only is this the most pragmatic and least costly option, but the protocols governing contentious probate disputes mandate that this approach is taken. Unfortunately, a resolution is not always achievable particularly where the executor refuses to engage and provide a full inventory concerning their dealings with the estate. This inevitably leads to legal action to remove the Executor formally.

The type of action required will depend on whether or not the Grant of Probate has already been obtained. In the event the action to remove an Executor is pre-grant, the application will be commenced in the Family Division to 'pass over' an Executor under the Senior Courts Act 1981 section 116, which provides:

(1) if by reason of any special circumstances it appears to the High Court to be necessary or expedient to appoint as administrator some person other than the person who, but for this section, would in accordance with probate rules have been entitled to the grant, the court may in its discretion appoint as...