Jackie* was in her sixties when her mother, Evelyn*, passed away. Evelyn had left a will and appointed Jackie’s two brothers as executors. Sadly, one of these brothers had developed dementia and was unable to do what was required, while Jackie was worried about some things her other brother had done while their mum was still alive.
He had had Power of Attorney over their mother’s financial affairs while she was alive but refused to explain how some of her money had been spent.
The law
Executors, who have been appointed by an individual in their will, and administrators, who are those appointed where no will has been written, are known collectively as ‘personal representatives’. Their overriding duty is to collect together the assets in the estate and administer it correctly under Section 25 of the Administration of Estates Act 1925.
Personal representatives have a duty to act independently and in the best interests of the estate, but sometimes there can be a conflict of interest, especially where the personal representatives are due to benefit from the estate.
An application to remove an executor can be made under certain circumstances – if, for example, they cannot perform their duties due to a disability or if they are unsuitable for the position.
What happened next?
We thought Jackie had good grounds to pursue a claim to remove both executors. The first step was to get full details of Evelyn’s assets and an explanation of any payments which had been made while she was alive by the brother who had Power of Attorney. When we saw this it was immediately clear that he had a conflict of interest and, as a result of his actions, was an unsuitable executor.
We made an application to remove both brothers as executors and to appoint a professional, independent person instead.
As a result of our intervention, it was agreed that the brother who had dementia would be removed as an executor because of his disability. The other brother agreed to pay back all the money he owed to the estate and to pay a significant contribution to Jackie’s legal costs. Another firm of solicitors was then appointed to deal with the estate properly.
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