Executor in breach of summons for inventory and account order.

[Guest]

Hi there, I hope you can help me. Following information from this site, I applied to probate and a summons for inventory and account order was served. The executor (who has distributed the estate and provided summary accounts but not supporting documentation) issued a statement, and provided receipts for liabilities and expenses but no documentation for assets. The registrar at the probate court has replied that they have no further powers as the order has been served and the executor has provided accounts. (There is some indication of petty fraud. The executor has made unilateral decisions not covered by the terms of the will and made a defamatory, false statement.) I just want to see the full documented accounts at this stage, but the registrar suggests I seek legal advice and take the matter up in another court. (They don't say which one.) Any ideas what I need to do next? Thanks.

[des8]

The registrar is not allowed to give you legal advice, hence his advice to seek assistance from a solicitor.

As you are dissatisfied with the executors explanation, your only course of action is to apply to the court to remove him and substitute another.
Not a course of action to be undertaken lightly as you will need to prove to the court that the executor has seriously misbehaved.

Assuming the executor has not been disqualified because eg he is a criminal convicted since being appointed, nor is he incapable of performing his duties, it leaves you only unsuitability due to either a conflict of interest or serious misconduct.
The misconduct would have to be so serious that it affects badly the estate (e.g. stealing from the estate, not keeping proper accounting records, not obeying a court order, or mismanaging the estate).

If you are a beneficiary you can apply for a court order to remove an executor by making a Part 8 Claim, under the Civil Procedure Rules 57.13.

You will need a certified sealed copy of the Grant of Probate, plus a witness statement.
The WS will have to show why the executor should be removed, along with details of the deceased’s assets and liabilities, names of the beneficiaries and the proposed name of the substitute executor.
The proposed executor will need to provide a signed consent to act form.
You will also need to provide a WS of the proposed executor's fitness to act


Regarding defamatory statements: were they about you? in writing or verbal? published? caused serious harm?
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[LegalSeeker*]

Hi there, thank you for your reply. As the executor has already acted (distributed the estate), it would seem that it is too late to remove him? He has not kept proper accounting records or presented them to the beneficiaries or the court. He has also not complied in full with the court order. (He has listed the assets but provided no documentary support.) We (I am acting on my own behalf and another beneficiary) want to see the full accounts (including supporting documentation) so we can decide how and if to proceed.

At present all we have are his summary accounts with receipts for liabilities.

In terms of defamatory statements, he filed a witness statement to the court which contains a number of demonstratably untrue statements about me designed to besmirch my character. (The executor trained as a solicitor but did not practice. He claimed that the claim was vexatious and frivolous, yet all we want to do is see proper accounts.)

I should add that the executor lives in France.

All advice very much appreciated. Thanks

[des8]

Firstly forget the defamation as statements made in court are* privileged and even if you were to win a case it would very possibly cost you lots more than you would be awarded

He could still be removed, then if he has acted incorrectly money could be recovered from overpaid beneficiaries or failing that from the executor himself, (but only if he has it!)..... but it won't be cheap!

[LegalSeeker*]

Thanks for your reply. I will look into that option. In the meantime, I have asked the registrar to follow up. (I saw somewhere on here I think, that in a case where an executor did not provide full accounts, the registrar gave them a further 14 days to comply. This is what I would like. For the registrar to press for full accounts. Is that outside her remit?

[des8]

If the registrar is not satisfied, yes they can request further information, but whether or not you can ask the registrar to do so is another question!

Having examined the supplied accounts and not been satisfied your next step is to apply for the executor to be removed/replaced under a section 50
application.
You will need to show from the accounts submitted that they are incomplete or false or in someway show he has seriously mismanaged the estate.
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[LegalSeeker*]

Thanks again. Yes, the accounts are incomplete. There is no documentation for assets. He made unilateral decisions not covered by the will and there are indications of petty fraud. It does not seem right to me that an executor can play the system like this and get away with it. However, I understand the law has its limitations.

Is it necessary to have a solicitor to have the executor removed?

[des8]

An action to remove an executor starts in the High Court, and whilst theoretically you can diy, IMO you would do well at least initially to consult for a free or limited fee initial consultation.
There are costs implications, win or lose, and you need to take that into account.