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When someone close to you dies it can be a difficult time, both emotionally and practically. If that person has left a will you may find that you have been appointed to act as one of the executors.

It is the duty of an executor to properly distribute the deceased’s property, goods and money (the deceased’s “estate”) in accordance with the terms of that person’s will, in the interests of those who benefit from that will (the “beneficiaries”) and to pay the deceased’s debts and expenses.

It can arise that one of the appointed executors is not acting as they should perhaps, for example, by holding on to property that should be sold, preventing the other executors from selling it, or by creating serious delay, preventing the estate from being administered.

If that is happening then it must be resolved because you, as one of the executors, have your duties to perform.

Such a scenario occurs more often that most of us are aware. You will not be on your own in this experience.

Sometimes it can be resolved amicably and this is to be encouraged, either informally, or through some sort of dispute resolution process, such as mediation. The executor concerned may agree to stand down, allowing the others to proceed.

That said, it is not always possible to resolve the problem in that way. What then can you do? You can apply to the Court for an Order that the misbehaving executor be removed and, perhaps, be substituted for someone else.

A Court will only remove an executor if it is in the interests of the proper administration of the estate, and promotion of the welfare of the beneficiaries, to do so. Beyond that, there is no specific requirement that must be satisfied. It is for the Court to decide, on the facts, whether it is the best course of action.

If applying to remove that executor is the best course of action then you should at least be able to recover the costs, of taking that course, from the estate or, if the Court grants your application, the misbehaving executor may be ordered to pay your legal costs.

Obtaining initial legal advice is a wise step. At Maxwell Hodge, in addition to advising you on the best course of action, our Team can do a number of things, such as arranging mediation, preparing paperwork and representing you. We tailor make our services to suit you. Our aim is that you get the best outcome for the estate.