Executors who have been appointed under a Will in Scotland hold a very powerful position with many duties and obligations. They have been chosen by the deceased to carry out a specific role because they have been trusted to administer the estate correctly and in line with the deceased’s will. When an executor has been chosen, it is presumed that they are the right person to carry out this role and as a result, it can be challenging to remove an executor from their position. Unless the executor agrees to resign, they may only be removed from their position by the court. In this article, we look at why you may wish to remove an executor, and the court processes for doing so.
There are many reasons as to why you would want to remove an executor, with every case unique to its own set of circumstances. Typically however, beneficiaries or other executors want to remove an executor because they believe the errant executor is mismanaging the affairs of the estate or not acting in the best interests of the beneficiaries.
In the first instance, you may wish to ask the executor to resign. Having an executor resign is much more straightforward than removal. If the executor refuses to resign, you will need to apply to the court, but the circumstances in which the court will remove an executor are limited.
Under the law, executors are trustees of the estate and have duties towards the beneficiaries. However, the rules as to when trustees can be removed are strict. Section 23 of the Trusts (Scotland) Act 1921 permits the court to remove an executor in the event of i) insanity ii) incapacity iii) where they are absent from the UK or disappear for six months or more. These grounds are limited, and may not be useful to you if the executor is mismanaging the estate.
The Court of Session also has the power to exercise what is known as the nobile officium to remove an executor. You must make an application to the court, outlining your reasons for removal. It must be made clear to the court that there is no other option but to remove the executor.
Recent case law has highlighted that poor performance, acting slowly, disagreements between executors or negligent actions will likely not be enough for the court to exercise this power - there must be a fundamental breach of fiduciary duty. Examples include refusal to carry out any of their duties or a conflict of interest which cannot be overcome.
This is a highly complicated area of the law. If you are concerned about the conduct or actions of an executor, you should seek specialist legal advice right away.
On the other hand, appointing an executor is reasonably straightforward. Many people choose to appoint a solicitor as an additional executor to help them deal with the administrative burden of dealing with an estate and any complex matters which may arise.
Murray Beith Murray Partner, Andrew Paterson, heads our Executry group and has assisted many families with the legal issues arising following the death of a relative. If this blog has raised any questions or you have a matter to discuss please get in touch using the enquiry form or call on 0131 225 1200.
Murray Beith Murray was established in 1849, as advisors for generations of clients, committed to our values of integrity, expertise and trust. This aim and these values continue to this day as does our commitment to be here when you need us.