The news coverage of the Royal Family over the past year (2021) has highlighted two very real but sad facts of life (1) all families fight and (2) it can often take the death of a loved one to bring families back together and move past any differences they may have.
Whilst the death of a loved one can be, and often is, a uniting force, it can also deepen existing family feuds or equally cause a rift within families. This can be the case particularly where one family member is appointed executor (over other family members) and becomes responsible for dealing with and distributing their loved one’s estate. In such circumstances, that family member may make mistakes, mishandle the estate or simply make decisions their family members disagree with – resulting in their ability to be executor being questioned.
The recent case of Campbell v Campbell illustrates the difficulties of being an executor where relationships breakdown and the ability/difficulty in removing an executor from office.
The case
Mr Campbell passed away on 14 June 2015 at the age of 92. In accordance with his Will, one of his two sons along with his daughter-in-law were to be his executors. His estate was to be divided equally between his two sons.
The first son, as executor, prepared an inventory of his father’s estate, and applied to the Court for Confirmation. He did this without the assistance of a solicitor. Upon Confirmation being granted, he sought to pay the second son his entitlement under the Will. The second son took issue with the sum his brother sought to pay – believing he was due more from his father’s estate.
Upon investigation, the second son found multiple issues with the inventory that had been prepared by his brother. In particular, two of Mr Campbell’s bank accounts had been left out of the inventory. When these accounts were accounted for, the sums noted in each were substantially less due to the first son having withdrawn money from the accounts to pay for what he thought were reasonable expenses. One such expense was a haircut at an expensive salon.
On the basis that these expenses had the effect of reducing the second son’s entitlement under his father’s Will, he raised proceedings to have the first son removed as executor.
The judgement
Having heard each of the parties, Lady Poole considered that the second son had legitimate complaints in the way that the administration had been handled by his brother. However, for Lady Poole whilst legitimate, these concerns were not sufficient to remove him as executor. According to Lady Poole there needed to be at least one of the following to remove an executor from office:
- Malversation of office - where an individual in their role as executor has acted in a manner which is blatantly inappropriate
- Persistent and wilful neglect by the executors which rendered the administration ‘practically impossible’
- Unacceptable conflict between an executor's personal interest and their duties.
Lady Poole did not consider that any of the three situations applied, she believed the mistakes made by the executor could be rectified. She therefore held that there was no barrier to the completion of the executry and that Mr Campbell’s wish to have the first son as executor ought to be upheld.
Comment
Samantha Miller, Solicitor in our Dispute Resolution and Litigation team commented as follows:
“It is difficult not to raise an eyebrow in this case – particularly when you read that an executor was allowed to remain in the role after attempting to charge an estate for a haircut. Especially, given that the same executor had opted not to instruct a solicitor to reduce costs to the estate.
However, when you examine Lady Poole’s judgement – the preconceptions regarding both son’s motivations are almost turned on their head. Further the judgement raised a number of significant points with regards to removing an executor from office.
First, a number of considerations were highlighted as important when determining whether an executor ought to be removed. In this case, Lady Poole, took into account Mr Campbell’s wishes and the relationship he had with his two sons. In particular, the first son had taken care of Mr Campbell for a number of years - organising delivery of his groceries, paying his utilities bills and arranging for carers to assist him as and when required. And this assistance only increased as Mr Campbell got older and as his health deteriorated.
Whereas, Mr Campbell’s second son, who lived in the Netherlands and was not particularly involved in his father’s care, was not fully aware of his father’s deteriorating health.
Lady Poole also considered the actions of both sons following Mr Campbell’s death and the decisions taken by the first son in his role as executor, stating that it was not enough to simply look at the executor’s actions in a vacuum.
Second, Lady Poole made it clear that a high threshold had to be reached before an executor could be removed from office. Indeed, Lady Poole in effect created a new test in which one of three situations must now apply before removal will even be considered. Further, she made clear that even where one of these three situations applied – the executor may (but would not necessarily) be removed. This makes clear that even where one of the three situations apply, removal is not automatic and that the actions of the executor must be of significant severity and that the decision will remain within the court’s discretion.”
Conclusion
The task of being an executor, whilst also grieving and managing often complex family relationships can be overwhelming – leading to miscommunication, human error and a breakdown of relationships. However, it can also be a role which executors abuse and knowingly do so for personal gain. The importance lies in distinguishing between the two categories.
There is no question from this case that Lady Poole has made it even more difficult to remove an executor than previously was the case. The new test introduced along with the already complicated nature of these types of disputes and the various considerations to be reviewed will no doubt prevent many actions from being successful.
Given the court’s stance on removing an executor it is important, now more than ever, that there is sufficient evidence to convince the court that (1) one of the three situations apply, and (2) the court should exercise its discretion.
Whether you require assistance drafting a Will or if a dispute arises in connection with an individual’s estate, our Private Client and Dispute Resolution and Litigation Teams would be happy to help.
