Appointing an Executor to Your Will – What Can Go Wrong?

Recent figures released show that the number of disputed Will claims issued in the High Court have risen by 25%. This is not surprising. There are many factors which probably add to this result. Firstly, many people who made a great deal of money in the property boom are now reaching the end of their life.

Ultimately this means that people are dying with more assets in their estate, especially in the South East where even the most modest of estates, if it includes a property, is probably worth at least £300,000 to £500,000. The second is that we are of course more aware that it is possible to contest a Will or bring a claim to receive a share of an estate even if you are not named in the Will. This has come about by the increased media attention given to these types of claims. The fact that it is a growing area means it is to some extent self-perpetuating. Another factor is that we have a greater percentage of our elderly population who suffer from dementia which in turn gives rise to us having a greater knowledge of capacity issues. This can bring about a greater number of claims where relatives seek to challenge the validity of the Will because the Will maker was too ill and would not have known what he was doing at the relevant time.

What many people do not realise is that the above figures do not only include claims where relatives are attempting to challenge what they have been left but it also includes claims to remove executors who are not doing their job properly. This is a huge area for argument. Appointing an executor under your Will is a difficult choice. Many executors who are family members are unaware of the onerous task it involves and more importantly the challenges they may face from disgruntled beneficiaries. Being appointed as an executor requires that person to take on a role which brings with it personal liability. If you asked that person in advance and told them what was involved I suspect many of them would decline particularly in the knowledge that if they do it wrong, they may have to pay out of their own pocket. However the fact is that most executors are not asked and certainly are not told of the extent of the task and the liability involved before they merrily accept the role, probably many years in advance of death, and thinking it will never happen or will not be a problem When the time comes for them to pick up the role it is often many years on, the family dynamics can have changed considerably and a wealth of problems arise, none of which the executor could possibly have imagined at the time he agreed to take on the role. The executor takes up the role in good faith and suddenly finds himself faced with all manner of accusations from beneficiaries who want things done differently or who are in some other way dissatisfied. Putting it bluntly the executor becomes the punch bag.

In other cases, the executor may just have been the wrong choice. It is tempting to find the most knowledgeable person in the family to do the job. Perhaps someone who has more money than other members of the family and therefore has more experience in handling financial affairs. However, experience of investment is not necessarily the key. Personality is, in my experience, far more important. To appoint an executor who believes the role to be one which allows him to do as he pleases is a recipe for disaster. That person will seek to control the estate, will not share information with the beneficiaries because he feels he has no need to do so; perhaps even that the beneficiaries are interfering in what are his decisions. The beneficiaries will become suspicious as to what is going on and before you know it there are allegations being made about the executor and what he is doing with the estate – a claim to remove him is inevitable because the trust has gone, and suspicion has taken over.

So, what happens then……. The answer is that an application can be made by a beneficiary to the court seeking to remove the executor and on occasions seeking that he is personally liable for the costs of that application. This is an expensive and time-consuming procedure and one which is not entered lightly. The difficulty is that once there are suspicions and or delay, tension arises and sometimes a court application is the only way forward.

On the other hand, if the estate becomes unmanageable because of over-zealous beneficiaries persistently failing to recognise the executor’s role and not allowing him to get on with the job, then he himself may be faced with having to make an application for his own protection. If the beneficiaries suggest that they may bring a claim against the executor he will need to make an application to the court for permission to take certain tasks whilst being afforded protection from the court against potential claims. The costs of such an application will come out of the estate in most of cases thereby reducing the amount of money available for the beneficiaries at the end of the day.

These application for removal of the executor and/or protection of the executor are not the only claims making up the increase in the number of claims being issued but I suggest make up a fair percentage of those applications. It is a situation which can be avoided by :

• Careful choice of your executor
• Executors acting in a reasonable manner and being transparent
• Beneficiaries recognising that the executor has a job to do and cannot go behind what is in the will.

Needless to say, these type of court applications should be a last resort but inevitably they do arise sometimes for the reasons outlined above and it would seem from the recent figures – perhaps much more often that they should.