The most recent case from the Outer House of the Court of Session reminds us that removing an Executor is not a simple task.
Graeme Sutherland Campbell v James and Margaret Anne Campbell 2021CSOH 3
In this case Mr Campbell died aged 92 after appointing one of his sons (James) as his Executor. James had also acted as his Power of Attorney for around seven years prior to his death.
Mr Campbell’s second son Graeme, who lived in the Netherlands and took little to do with his father, wished the Court to remove his brother as Executor due to what he believed to be, his very poor and dishonest performance as Executor. The case did expose (as they often do) that there are two sides to every story and that neither brother had acted well prior to, or following their father’s death.
A brief guide to an Executor’s duties
An appointed Executor has a duty to investigate and accurately report the value of the estate at the date of death. In most cases, they will submit an inventory to the relevant court with an application for Confirmation and ensure payment of all debts, funeral bills and tax. This might be Inheritance Tax, Capital Gains Tax or Income Tax.
They must make sure that, where relevant, they have paid or received discharges for legal rights (a uniquely Scottish concept to ensure a spouse or child is not disinherited). They should pay legacies in a timely fashion and thereafter, distribute the remaining estate per the terms of the Will. It is also good practice to prepare an executry account at the conclusion to make sure everything has been handled properly. If there is no Will, there are often a number of other steps and factors to consider.
In this case we see the Judge, Lady Poole highlight that a lack of harmony between Executors or indeed, a family at odds, is not enough for removal, even where the executor’s actions result in a loss.
But “persistent, wilful neglect, contempt and obstruction, which then taken together render (executry administration) a practical impossibility, may be sufficient grounds to remove a Trustee”. Further, “An unacceptable conflict between an Executor’s personal interest and his duties as an Executor may be sufficient”.
In this case, we see the Executor’s submission of a funeral expense for a sharp haircut at Bearsden’s Rainbow Room being viewed as a step too far. We also see an examination of his actions as Power of Attorney and criticism of gifting and record keeping.
However, Lady Poole found that the Executor acted overall in an acceptable way trying to administer the estate for the most part in good faith. She noted the Executor had to some extent been hindered by his brother’s clandestine removal of bank books from their father’s home on the day of his funeral.
Instructing a solicitor
The Executor chose not to instruct a solicitor to assist with the estate so had, without knowing it, acted improperly in distributing funds outside the terms of the Will. Lady Poole said “ignorance of legal requirements does not absolve Executors from carrying out their legal duties”. But “the question of whether or not Executors have breached any duties is not the same question as whether they should be removed from office”.
It was also noted that although each individual can decide if they wish to instruct a solicitor or not “with the benefit of hindsight it might be thought that failing to instruct a solicitor has been a false economy”.
How to remove an executor
To remove an Executor is a difficult task and mostly considered in circumstances of insanity and lack of ability due to physical or mental disability or being absent from the UK for a period of at least six months or having disappeared for a similar period.
If these circumstances do not apply, the next step is to apply to the Court of Session for removal under common law. It is an unpredictable, expensive and time consuming route and depending on the values involved, may end up eating up a rather disproportionate amount of the estate.
In order to avoid such issues, it is important to think carefully as to who should be appointed as Executor. If family Executors will only result in years of fighting, it may be best to appoint a professional, or at the least instruct a professional to make sure all of the legal requirements are met.
At Harper Macleod, our private client and dispute resolution solicitors can advise you across the spectrum. With the private client team making sure that your Wills and Powers of Attorneys are robust and bespoke to your family circumstances.
If however there is a dispute, the experienced dispute resolution team can guide you through the Court process.
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