The spike in claims against executors of Wills

High Court claims against executors in England and Wales have grown by more than 20 per cent over the past 12 months, according to research recently published by the Times. While the total number of disputes remains quite low, legal practitioners believe that this is just the tip of the iceberg since most of them are settled before they ever reach a courtroom. The primary factors behind the spike in claims are identified as an increase in the number of blended families – where partners have their own children and another child or children from a previous relationship – and escalating property values. Many claims involve allegations of a breach of fiduciary duty, with executors failing to act in the best interests of the beneficiaries, often by distributing assets of a deceased person against the terms of the Will.

In our experience, these findings come as no surprise. We have also seen a significant rise in the number of cases that involve disputes, both with and between executors. As indicated by the research, the increasing prevalence and popularity of blended families arises from people living longer, having relationships in later life, more remarriages, an increased number of cohabitees, more step children, adult children living at home, and other evolving trends. Similarly, as estates continue to increase in value – in line with property prices – they fuel the potential for disputes to arise.

Although the research highlights these as the main causes of disputes, there are multiple potential contributory factors. These include:

• Inaction by Executors. It is a big responsibility and some may be unable or reluctant to deal with the legal, financial, and administrative issues around probate, estate funds might be used as if they have already been inherited.
• Reluctance to leave. Occupants in a property owned by estate – cohabitees, spouses or adult children – do not want to leave. In this context, executors may have to take possession proceedings against them.
• Family executors. We see a lot of homemade Wills in which people appoint their closest family members as executors, rather than solicitors or professional executors.
• Lack of understanding. People are often unfamiliar with their role as executors, their primary responsibility to the beneficiaries, and their duty to carry out the terms of the Will.
• Wills not being updated. Regrettably, failure to update Wills to allow for changing circumstances is all too common. We see cases with deceased executors, for example. Homemade Wills may not include a substitute executor.
• Probate delays. These can lead to property maintenance costs and expenses – potentially, for a long time. Executor’s expenses can be a point of dispute, particularly if the executor is living in the property.
• Difficult circumstances. It can be very challenging if, for example, an executor does not inherit a property, but remains living in it without paying rent.
• Moral views particularly if there is a departure from the traditional, customary or expected position

Disputes relating to Wills and estates can be further exacerbated by an executor who is also a beneficiary: a conflict exists between the two roles that can be hard to separate. Executors have to be neutral, whereas beneficiaries have a vested interest – people can get into difficulties when trying to juggle the two roles.

Ideally, if there is a dispute, people should have different legal advisers for their respective roles as executor and beneficiary.  Careful thought should be given to who is appointed in your Will. Considering an independent professional who enables the estate to be administered in accordance with testator’s wishes may ultimately save on legal costs.

Warring executors can also ask the Court for directions on how to administer an estate, or agree to appoint an independent administrator in their place. Executors should be aware that they can be removed or replaced and asked to repay any expenses. Similarly, if they do not seek appropriate indemnities, they could be personally liable for the costs of legal proceedings brought by, or against an estate.

Looking at all the contributory factors, the ongoing increase in disputes seems likely to continue rising for some time. Those who find themselves involved in a dispute should always seek independent legal advice. It is usually more cost effective to get expert advice as early as possible. If you need help, contact our Will Disputes team.