“Wills are uncanny and electric documents. They lie dormant for years and then spring to life when their author dies, as if death were rain. Their effect on those they enrich is never negligible, and sometimes unexpectedly charged. They thrust living and dead into a final fierce clasp of love or hatred. But they are not written in stone—for all their granite legal language—and they can be bent to subvert the wishes of the writer.” (Strangers in Paradise: How Gertrude Stein and Alice B Toklas got to Heaven)
When thinking about a subject for this article, I came across the above quotation and was immediately struck, not just by how true it is, but by the final few words. That a Will “can be bent to subvert the wishes of the writer”. For those of us that deal with Will, Trust and Estate disputes on a daily basis, never has a truer word been spoken!
Despite all the checks and balances that are in place to ensure that a legally valid Will is prepared that accurately reflects the testator’s intentions, ultimately it is the role of the executor, often acting alone, to turn those words into reality. But how often do people truly consider whether their proposed executor is appropriate for the task?
Executors play a vital role: they collect in assets, pay debts, and distribute what is left to the beneficiaries. They are also the first (and often only) arbiter who interprets a letter of wishes, the content of which may often be known by nobody but them. And while most executors carry out their duties diligently and without issue, that is not always the case.
What can go wrong?
Problems with executors tend to fall into a few common categories:
- Delay – an executor who simply does not get on with the job. This can leave beneficiaries waiting years for an estate to be wound up.
- Conflict of interest – for example, an executor who is also a beneficiary may act in a way that favours themselves over others.
- Mismanagement – failing to safeguard estate assets, such as selling property below value or mixing estate funds with their own.
- Refusal to act – executors who do nothing, either because the task feels too daunting or because of family disputes.
What can beneficiaries do?
Beneficiaries often feel powerless when faced with an executor who is uncooperative or negligent. However, there are options:
- Information requests – executors are expected to keep beneficiaries reasonably informed. If an executor is withholding information, a formal request can often prompt action.
- Mediation and negotiation – in many cases, disputes can be resolved by bringing the parties together with professional guidance.
- Court applications – if matters cannot be resolved, it is possible to apply to court to compel an executor to act, or in serious cases, to have them removed and replaced.
Why are these disputes on the rise?
With estates often involving high-value property, complex investments, or blended families, the scope for disagreements is greater than ever; and by the time you know that a disagreement exists, it is often too late for the testator to be able to remedy it. The role of executor carries heavy responsibilities, but many people are not fully aware of what is involved when they agree to take it on.
How to avoid problems
I cannot emphasise enough how important it is to choose the right executor, and I have lost count of the number of times I have been told that family members had a perfectly good relationship with each other, until after the testator’s death. One solution is to name a professional executor, such as a firm of solicitors, that can be appointed to provide impartiality and expertise. Even where family members are chosen, it is often wise to appoint more than one executor.
This leads me to a final quote I came across, from the Swiss theologian, Johann Kaspar Lavater. He said:
“Never say you know a man until you have divided an inheritance with him.”
Final thoughts
Disputes with executors can be stressful, costly, and time-consuming. But with the right legal advice, beneficiaries can take steps to protect their interests and ensure that the estate is administered properly.
If you are experiencing difficulties with an executor, TWM’s specialist Will, Trust and Estate Disputes team can help you understand your options.