Removing trustees & executors

We have extensive experience handling sensitive cases involving the removal of trustees and executors. Our team of dedicated solicitors understand the unique challenges beneficiaries face, including:

• Mismanagement of assets leading to financial losses.
• Disputes arising from breaches of fiduciary duties.
• Conflicts that disrupt the administration of estates and trusts.

Our practical, results-driven approach ensures that disputes are resolved as efficiently and effectively as possible, minimising stress and disruption.

Every case is unique, and we take the time to understand your concerns and objectives. Whether you’re a beneficiary seeking the removal of a trustee or executor, or a trustee/executor defending against removal, we provide bespoke advice and representation, including:

• Assessing the strength of your case and available legal options.
• Handling negotiations to avoid unnecessary court proceedings.
• Representing you with precision and determination if court intervention is required.

We know how overwhelming trust and estate disputes can be, especially when personal relationships are involved. That’s why we prioritise:

• Clear explanations of your rights and options at every stage.
• Regular updates to ensure you remain informed and confident in the process.
• A compassionate, client-focused approach to guide you through what can be a highly emotional experience.

A trustee or executor is responsible for safeguarding assets, ensuring proper administration, and distributing funds according to the terms of the trust or will. Mismanagement occurs when they fail to fulfil these duties, potentially causing financial harm. Examples include:

• Poor investment decisions: Trustees often manage investments on behalf of beneficiaries. If they fail to act prudently or take unnecessary risks, the trust or estate could suffer significant losses.
• Failure to keep accurate accounts: Trustees and executors must maintain clear financial records to demonstrate how assets are being managed. If they cannot produce reliable accounts, beneficiaries may suspect mismanagement or neglect.
• Delays in distribution: Executors, in particular, are expected to administer estates in a timely manner. Unexplained or avoidable delays in distributing assets can create uncertainty and dissatisfaction among beneficiaries.

When mismanagement occurs, it undermines trust and can justify legal action for removal.

Trustees and executors are fiduciaries, meaning they must act solely in the interests of the beneficiaries. A breach of this duty is a serious matter and may include:

• Self-dealing: Using trust or estate assets for personal gain, such as borrowing from the trust or making payments to themselves without justification.
• Conflict of interest: For example, if the trustee favours one beneficiary over another due to personal relationships or ulterior motives.
• Ignoring the terms of the trust or will: Trustees and executors are legally bound to follow the specific instructions set out in the trust deed or will. Failing to adhere to these instructions may amount to a breach.

A breach of fiduciary duty is not only unethical but also grounds for removal by the court.

Instances of dishonesty or unethical behaviour by trustees or executors can cause irreparable harm to the trust or estate. Examples include:

• Misappropriation of funds: This occurs when trustees or executors unlawfully take money or assets for themselves or others without authority.
• Providing false or misleading information: A trustee or executor who deliberately lies to beneficiaries about the status of assets or the progress of administration damages trust and accountability.
• Fraudulent activity: Any evidence of fraud, such as falsifying documents or concealing transactions, can lead to immediate removal and legal consequences.

Dishonesty is one of the clearest grounds for seeking the removal of a trustee or executor.

Open and transparent communication is a fundamental part of the role of trustees and executors. However, some fail to meet this obligation, leading to frustration and suspicion. Common issues include:

• Ignoring beneficiaries’ concerns: Beneficiaries may feel disregarded if their questions or requests for information are repeatedly ignored.
• Lack of updates: Trustees and executors are expected to keep beneficiaries informed about key developments in the administration process. Prolonged silence can create unnecessary anxiety.

Poor communication alone may not always justify removal, but combined with other issues, it strengthens the case for legal intervention.

Not every trustee or executor is equipped to handle the responsibilities of their role. Whether due to a lack of knowledge, incapacity, or unwillingness to act, their inability can harm the trust or estate. Examples include:

• Inexperience: Some trustees or executors lack the expertise to handle complex financial or legal matters, resulting in costly errors.
• Health or personal circumstances: Illness or other personal challenges can render an individual unable to fulfil their obligations.
• Refusal to act: If a trustee or executor is unwilling to carry out their duties, beneficiaries may face unnecessary delays and complications.

In such cases, replacing the trustee or executor with someone more competent may be the best course of action.

Personal disagreements can escalate to the point where the relationship between trustees or executors and beneficiaries becomes unworkable. Examples of such conflicts include:

• Perceived bias: Beneficiaries may feel that the trustee or executor is not acting impartially or fairly.
• Ongoing disputes: Personality clashes or heated disagreements can disrupt the administration process, making it impossible to move forward effectively.

While personal conflicts alone may not be sufficient for removal, they often indicate deeper issues that need resolution.

Trustees are responsible for managing the trust in line with the trust deed and acting in the best interests of beneficiaries. When they fail in these duties, the following legal options may apply:

Judicial Trustees Act 1896

This Act allows the court to appoint a judicial trustee to take over the administration of a trust if an existing trustee is found to be unsuitable. While this provision is rarely used in practice, it remains a valid legal route in cases of severe misconduct or incompetence.

Deed of removal

If the trustee is willing to step down voluntarily and no harm has been caused to the trust, removal can often be arranged through a deed of removal. This is typically the simplest and quickest method, but it depends on the cooperation of the trustee and the powers granted within the trust deed.

Power of a protector (if appointed)

Some trust deeds appoint a protector with authority to remove trustees. If this option is available, it avoids the need for court intervention, making the process faster and less contentious.

Executors are responsible for administering an estate in accordance with the terms of the will and the law. If they fail to fulfil these duties, different legal processes apply depending on whether a grant of probate has been issued:

Before a grant of probate: Section 116 of the Senior Courts Act 1981

This section allows the court to “pass over” a personal representative if they are deemed unsuitable or incapable of performing their duties. Applications under this provision can be made by any interested party, including beneficiaries or creditors.

The court will typically act in cases of delay, mismanagement, or conflicts of interest, appointing an alternative administrator in their place.

After a grant of probate: Section 50 of the Administration of Justice Act 1985

If a grant of probate has already been issued, beneficiaries or interested parties can apply to the court under this Act to remove or replace an executor.

The court will consider whether the executor’s continued involvement would obstruct the proper administration of the estate. This is often used in cases of misconduct, incompetence, or irreconcilable conflicts with beneficiaries.

The process for removing a trustee or executor is highly technical and can be contentious. Some key considerations include:

• Burden of proof: The applicant must demonstrate that the trustee or executor has failed in their duties or is unfit to continue in their role.
• Court discretion: Courts are reluctant to intervene unless there is clear evidence that the removal is necessary for the proper administration of the trust or estate.
• Impact on beneficiaries: The court will weigh the potential disruption to the beneficiaries and the administration process before deciding on removal.

Navigating these complexities requires expert legal advice to present a strong case and avoid unnecessary delays.