Concerns about an executor’s conflict of interest can be a significant source of uncertainty during the administration of an estate. Where an executor has a personal interest in the outcome of the estate administration or stands to benefit from decisions they are required to make, beneficiaries and co-executors may question whether the estate is being administered fairly and in accordance with the deceased’s wishes.
Executors are expected to act in the best interests of the estate and its beneficiaries. As a result, they should not place themselves in a position where their personal interest’s conflict, or may conflict, with their duties as executor.
In some cases, concerns about an executor’s conflict of interest may justify an application to remove them under section 50 of the Administration of Justice Act 1985. However, the existence of a conflict does not automatically mean an executor can be removed. The court will consider the nature of the conflict and, more importantly, whether it is affecting the proper administration of the estate or placing the beneficiaries’ interests at risk.
Why Some Conflicts of Interest Do Not Justify Removal
Many executors are appointed into positions where some degree of conflict is obvious from the outset. Common examples include:
- an executor who is also a beneficiary;
- an executor who owes money to the deceased under a loan; or
- an executor connected to a company or asset forming part of the estate.
Where the deceased knowingly appointed that person despite the potential conflict, the court will often find that the testator impliedly authorised the arrangement. The existence of competing interests alone is therefore not usually enough to justify removal. In other words, the mere fact that an executor is wearing two hats does not automatically prevent them from acting.
In some cases, the will or trust instrument may go further and expressly authorise what would otherwise be a conflict of interest. For example, a will may permit an executor to act as a director of a company owned by the estate and retain remuneration for that role. In those circumstances, the conflict has been expressly authorised by the testator and is unlikely, by itself, to justify removal.
For that reason, the existence of a conflict of interest is rarely the end of the enquiry. The court will usually look at how that conflict is affecting the administration of the estate in practice.
When a Conflict of Interest May Justify Removal
The court is more likely to intervene where the executor’s personal interests are affecting the proper administration of the estate.
Examples may include:
- using estate assets for personal benefit;
- failing to account properly to beneficiaries;
- delaying the administration in circumstances which benefit the executor’s own position; or
- making decisions which prejudice the estate or favour the executor’s own position.
In these cases, the court is not concerned simply with the existence of a conflict of interest.
Specialist Advice for Beneficiaries
Concerns about conflict of interest often arise alongside wider issues such as delays, breakdown of relations or disputes over estate assets. Whether an executor can be removed will depend on the circumstances of the case and the impact of the conflict on the administration of the estate.
Specialist contentious probate advice can help establish whether there are grounds to remove the executor, identify the evidence needed to support a claim and take steps to protect the estate and its beneficiaries. If you would like to discuss a personal situation relating to this please do not hesitate to contact me on alistair.rustemeyer@cognitivelaw.co.uk.
The author, Alistair Rustemeyer, qualified as a solicitor in 1994 and an accredited mediator in 1999. Alistair is a Full Member of ACTAPS and a specialist contentious probate solicitor in Brighton and Hove. His priority is to resolve estate conflicts smoothly through mediation, protecting your interests without unnecessary court litigation across all contested probate and Inheritance Act claims. For a free initial discussion, contact Alistair at alistair.rustemeyer@cognitivelaw.co.uk or call 0330 400 4499
