Workshop: To renounce or not to renounce

Few practitioners will have failed to hear criticism (whether warranted or not) of the conduct of executors. Uncommunicative, uncooperative, too slow, and in the case of professional executors, too expensive are the common complaints made against those who have been appointed by the deceased to deal with their affairs.

When prior to the issue of the grant of probate the criticisms levelled at the executors are justified the remedy available to the beneficiaries is to invite the executors to renounce. In the event that the invitation is rejected it is open to the beneficiaries to make a section 116 (of the Supreme Court Act 1981) application to pass over the nominated executor in favour of another.

After the grant of probate has been issued the equivalent remedy available to the Beneficiaries is to make a section 50 (of the Administration of Justice Act 1985) Application to have the Executor removed.

However what if there is no overt conduct by the executor which calls into question their suitability or their ability in general to discharge their duties and obligations? What should the executor do if at an early stage he or she is simply approached by the beneficiaries who wish to deal with the administration themselves or who wish to appoint alternative solicitors to deal with the matter?

This situation arose for the appointed executors in the case of Khan V Crossland [2012] WTLR 841. Before this case it was generally felt that without some positive evidence of unsuitability and/or poor conduct by the executors such an application would fail.

The beneficiaries were brother and sister. They were agreed as to how their father's estate should be distributed and were united in their wish that the appointed executor should not act. They approached the appointed executor (a will writing company) and invited them to renounce principally because they were concerned about the fee estimate provided by the executors for dealing with the administration of the estate.

The executor refused, their position being that they had been appointed by the deceased and there was no reason for them to renounce as they had not acted in a way that was likely to be considered unreasonable or inappropriate. The impasse resulted in a section 116 application by the beneficiaries to pass over the executors.

The application was successful. The court held that the factors to be considered were analogous to a section 50 application and concluded that on balance the case for passing over the executor was greater than the deceased's express wish that his chosen executors administer the estate.

The immediate consideration for the probate practitioner as executor therefore is whether they should always agree to renounce if invited to do so at an early stage.