Workshop: private client

The problem

An unfortunate situation arose recently involving a colleague appointed by the deceased as executor alongside the deceased's partner as a co-executor.

The funeral had been arranged by the co-executor and, after an appropriate period of mourning, my colleague suggested that he and the partner should meet to discuss the steps in the administration, asking at the same time for policy documents and deeds, etc. to be delivered to begin the usual process of identifying assets.

However, the partner 'went to ground' '“ over some six months, calls went unreturned and letters ignored. A personal visit to the deceased's property yielded no clues and my colleague became increasingly frustrated.

Of particular concern was the deceased's property '“ a leasehold property with rent arrears backing up and demands accruing for payment of management fees. It was clear that the property needed to be sold.

What could the professional executor do? He was faced with a lay co-executor with little, if any, interest in administering the estate and yet an estate to administer and his duties to comply with. The situation appeared to be a deadlock.

Considerations

The normal solution might have been (if the lay co-executor could be located) to ask them to renounce. So long as an executor has not intermeddled '“ such as by selling some of the deceased's personal possessions or collecting his debts '“ he can simply renounce probate. Organising the funeral does not constitute intermeddling. That, however, was not realistic in this situation; attempts to locate the executor had proved fruitless.

Another option might have been to apply for probate with power reserved. This process normally requires service of the required notice under NCPR rule 27(1) and acknowledgement by the co-executor. That did not appear possible in this situation. NCPR 27(3) could be invoked, if serving notice is 'impracticable or would result in unreasonable delay or expense', but that was not thought relevant, given that the co-executor's address was known and, of course, reserving power does not end the involvement of the reluctant executor, who could take up his role at any time in the future.

A citation to accept or refuse the grant (in cases where the executor has not intermeddled) was considered but quickly dismissed since the citor must be someone who would have a right to take out a grant, but who has not been named as an executor and the willing co-executor is unable to cite the reluctant executor because they hold equal office. It looked increasingly likely that the intervention of the court was required.

The solution

Section 116 of the Supreme Court Act 1981 comes to the rescue in this situation. It provides for the court to 'pass over' an executor who has not yet taken a grant where there are special circumstances. Those circumstances are typically where an appointed executor is unsuitable for reasons of bad character, neglect of his duties, absence abroad, unsound mind, ill health, imprisonment, incompetence, incompatibility, disappearance (as in this case) or indeed if he has intermeddled in the estate and then simply refuses to take the grant.

Obtaining an order under section 116 also provided more certainty by preventing the co-executor from possibly applying for a grant at a later stage (giving rise to a double probate situation) which would have significantly complicated matters. In non-contentious matters, as in the present situation, an application may be made without notice to the district probate registry or Principal Registry by any person with an interest in the estate which is what occurred in these circumstances.

The reluctant executor is a not an unusual occurrence and may be encountered in practice on more than one occasion. Dependant upon the exact circumstances there are options available to remove the executor to proceed with the administration of the estate.