High Court is the only legal route to formally remove executor of a will

Legal advice for farmers

Legal action against an executor of a will (who may be a family member) is expensive and difficult, and costs in such actions are commonly levied against the estate.

Dear Karen,

My aunt died approximately three years ago. and I am a beneficiary named in her will.

She left me her lands.

She appointed my brother as executor, and the estate has not yet been administered, and the lands are still not in my name.

Probate has been taken out, but this seems to be an extraordinary delay, and I am anxious to have matters finalised.

Is there anything I can do legally,y to get my brother to finalise the estate? What are my rights as a beneficiary?

I think he is disappointed my aunt did not leave her lands to him. I contacted the solicitor for the estate, but he has confirmed that he has not received instructions from my brother to do anything in relation to the estate for over a year.

Dear Reader,

Being an executor carries a lot of responsibility, and the task is quite onerous as, legally, your brother could be held liable for mistakes.

I see the solicitor dealing with the estate has confirmed that they have not received any instructions from your brother for quite some time. An executor firstly is given a grace period of one year from the date of death to organise probate for an estate. This is called the executor’s year, and during this period, an executor is protected from any legal action or challenge over how probate is being managed.

I would always advise a client to try to speak with an executor, if they can, in advance, and express their concerns and wishes.

But if you are not having any success, or he will not speak to you, the only way to formally remove an executor is via the High Court.

It is expensive, and a difficult task to carry out as, unless there is criminal activity on the part of the executor, courts are generally reluctant to remove executors.

In addition, court action usually eats into much of the inheritance available for distribution, and costs in such actions are commonly levied against the estate.

The first thing I would advise you to do is instruct a solicitor to send a legal letter to the estate’s solicitor, threatening legal action if the estate is not administrated within a certain time, for example, 28 days.

This might make your brother refocus his attention and efforts on the estate, and get on with administration. In any event, you would have to send a threatening letter before instituting legal proceedings.

It should be noted that the executors can be removed by order of the Court if they fail to fulfil their role and duties. For example, it has been held that a prolonged delay by an executor is a reason for which removal could be justified.

The applicant must show, to the satisfaction of the Court, that the executor was guilty of serious misconduct in the administration of the estate, and/or that the serious special circumstances of the case required his or her removal, and it is necessary or expedient to remove and replace him or her.

Instances of serious special circumstances which may justify removal of an executor include a conflict of interest, a pronounced delay by the executor in the administration of the estate, or a failure by the personal representative to discharge a fundamental duty.

In a relatively recent case of Shaughnessy v Shaughnessy, the defendant (the executor) had been repeatedly called upon to take out the grant of probate and administer his late mother’s will, because the value of the deceased’s property was falling drastically from 2007 onwards.

The plaintiff (the beneficiary) ultimately brought proceedings seeking a declaration that the defendant was negligent in breach of his duties as executor, to the detriment of the plaintiff, and also sought damages for negligence and/or breach of duty. The Court, in this case, was satisfied that the defendant, in his capacity as the nominated executor of his mother’s estate, failed in the duty of care which he owed to the estate and to the plaintiff, and declared that he was guilty of negligence and breach of duty.

• Karen Walsh, from a farming background, is a solicitor practicing in Walsh & Partners, Solicitors, 17, South Mall, Cork (021-4270200), and author of ‘Farming and the Law’. Walsh & Partners also specialises in personal injury claims, conveyancing, probate and family law.
• Email: [e-mail] Web: www.walshandpartners.ie