Probate & Estate Administration
What happens when Executors fall out?April 03, 2018
An analysis of the decision in Wilby v Rigby 2015
The background to the above case was that in her Will Mrs Rigby appointed her 2 children, Mrs Wilby and Mr Rigby as her executors and divided her estate equally between them. Unfortunately Mrs Wilby and Mr Rigby did not get on and were unable to work together. Mrs Wilby registered a caveat preventing the estate being administered and renewed that caveat during the next 3 years. Mrs Wilby then issued proceedings to remove her brother as an executor of their mother’s estate. The estate administration was complicated by the fact that Mr Rigby allowed the grandson of his partner to occupy the deceased’s house, rent free.
Historically, Courts have been reluctant to remove an executor unless there was evidence of some misconduct by that executor. Gradually, over a period of time, the Courts have looked to expand the grounds for removing an executor, so that it does not just require misconduct, but also can include acts which adversely affect the administration of the deceased’s estate and the welfare of the beneficiaries. In the case of Dobson v Heyman (2010) the Court ordered the removal of the executors on the grounds there was sufficient friction and difficulties between the executors to constitute a basis for their removal.
In Wilby v Rigby it was clear there had been a complete breakdown in trust between the two executors, to such an extent that neither had any confidence in the other and the Judge accepted that they were unable to work together. Mrs Wilby had registered a caveat preventing any grant being obtained. Mrs Wilby subsequently conceded at the Court Hearing that the entering of a caveat against the Will was improper, because there were no grounds to challenge the validity of the Will. In fact, Mrs Rigby entered a number of caveats in the 3 years prior to the Court Hearing and the presence of those caveats made it virtually impossible to progress the administration of the deceased’s estate. However, Mrs Wilby had made various offers to her brother in an attempt to reach settlement regarding who should take out the grant to their mother’s estate. She proposed that both executors stood down and were replaced by Mrs Wilby’s son, or alternatively by an independent executor. She even went so far as to invite her brother to propose an independent executor to take out the grant in place of herself and her brother. Those offers to reach a settlement were rejected by Mr Rigby.
The estate administration was further complicated by the fact that Mr Rigby allowing the grandson of his partner to occupy the deceased’s house, rent free. The grandson did carry out some improvements to the property and it was claimed at the Court Hearing that the grandson had always intended to purchase the house, but was unable to do so because no grant of probate could be taken out whilst Mrs Wilby’s caveat was in situ. The grandson was in occupation for some 3 years and was still in occupation at the date of the Court Hearing.
The Court exercised its power under Section 50 of the Administration of Estates Act 1985 and removed both executors of the estate in favour of an independent administrator. At the same time, the Court was keen to acknowledge the proactive efforts made by Mrs Wilby in settling the matter with her brother and awarded costs against Mr Rigby for rejecting the compromise proposals. Moreover, the Court found Mr Rigby liable to account to the estate for the rental income which should have been generated by the letting of the deceased’s property to the grandson of Mr Rigby’s partner.
There are 3 main points which have been noticed from this Court decision:
- Executors are under a duty to administer the estate of a deceased for the benefit of the beneficiaries. A breakdown in relations between the executors, amounting to a loss of trust, is sufficient to justify the removal of the executors.
- The Court will expect executors to explore solutions to any dispute and will not be reluctant to make Costs Orders against an obstinant or obstructive executor.
- Financial Costs Orders made against an executor can include loss of income to the deceased’s estate.
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