Recalcitrant Executors: Is there anything you can do?

Something which lawyers working in the Wills and Estates area see quite regularly is the recalcitrant executor.  This person has been appointed as an executor by a Will and, after the Will maker dies, initially indicates willingness to fulfil that role and to properly administer the Will.  But after a time they begin to delay or refuse to cooperate and stand in the way of progress.

Common factors often encountered include that the executor:

• has a personal interest in delaying: for example, he or she is occupying the estate property and is not paying rent, so benefits from delay or prevention of sale;
• has a personal vendetta against another beneficiary, such as a sibling: leading to him or her using the position of executor as a forum in which to loudly complain of every injustice he or she has felt in life and as a stick to wave while demanding “justice” and correction of “inequalities” and past “wrongs”;
• has difficult health issues (often including psychological issues).

Often more than one factor is at play.

A recent Supreme Court judgment has made it clear that a recalcitrant executor cannot get away with ongoing delay and obstruction.  The Court took a dim view of an executor who was preventing administration of the estate whilst he occupied the estate property and did not pay rent.  This amounted to profiting from his position, which an executor must not do.  The Court made it clear that the proper administration of the estate is a primary concern.

It is no excuse that the executor is suffering psychological problems or illness: this may, in fact, confirm the need to remove him or her.

The Court has power to remove an executor, which it did in that case.  And it has power to order the recalcitrant executor to pay the (often significant) costs of the Court proceedings, which lead to his or her removal, which it also did in that case.

Of course, avenues other than Court proceedings should be tried first.  But other executors and beneficiaries who are struggling with a recalcitrant executor should take heart that there is ultimately something which can be done, and should seek specialist legal advice.