You have made a Will. Congratulations! This puts you ahead of the almost 60% of the Scottish population who do not have Wills in place.
In your Will, you have appointed an Executor; the person charged with implementing the terms of your Will and carrying out their legal duties as your Executor. However, in light of the recent case involving a man who murdered his mum, but because he is named as the Executor in her Will he can attend to administering her estate, some people are campaigning for a change in the law in relation to the removal of an Executor. Setting aside any moral issue surrounding this case, this does raise the question of what can be done if you have appointed an Executor who is no longer capable, isn’t carrying out their duties or is simply unwilling to act?
Appointing an Executor is usually done through the making of a Will. This allows you to choose someone you trust to carry out your wishes and make sure those you wish to inherit your estate receive their entitlement. You can, of course, appoint more than one person to be your Executor or appoint one person together with a substitute Executor.
If you die with no Will in place, known as dying “intestate”, a relative can petition the Court to be appointed as your Executor. Given that you have no control as to which relative can seek to petition the Court to become your Executor, the importance of making a Will cannot be stressed enough in order to ensure that your chosen person you trust becomes your Executor.
The appointment of an Executor is a fairly straightforward process. However, difficulties can arise particularly when only one Executor has been appointed and they have lost capacity to act. At that stage, the Executor can no longer resign their position, as they do not have the sufficient capacity to be able to do so. So what can be done?
It is uncommon to find an express power to deal with the removal of an incapax Executor within the body of a Will and so other options require to be considered.
In certain circumstances, removal of an Executor can be achieved by submitting a petition to the relevant Court. In terms of the legislation, it is the Court that makes the order for removal for cases of mental or physical incapacity. The Court has discretion as to the evidence necessary to support such a petition.
However, if an Executor just simply does not want to act at the outset, they can sign what is known as a “Letter of Declinature” (provided they have the capacity to do so) declining their position and another Executor can then be appointed.
Separately, any appointed Executor must act in the best interests of the beneficiaries when carrying out the terms of a person’s Will. It may be considered a breach of the Executor’s fiduciary duty if they do not accurately disclose the assets of the estate or if they fail to carry out the terms of the Will. If an Executor is refusing to carry out their duties then a Court process can be undertaken to remove this Executor.
In summary, there are various ways of ensuring an unsuitable Executor does not continue with their role. In some cases, differences can be resolved through clear communication and understanding between co-Executors and, perhaps more importantly, between Executors and beneficiaries. Whatever the problem, we can seek to advise you on the most appropriate steps to be taken.
A few tips regarding your named Executor:-
- Review your current Will and if the person(s) appointed are no longer suitable, update your Will as soon as possible;
- Ask the person(s) before naming them as your Executor. This is not a job to be undertaken lightly;
- Consider appointing a professional trustee firm ; and
- Consider appointing more than one Executor.
Should you wish to discuss your circumstances, please do not hesitate to contact our Wills and Executries team, who would be happy to assist.