Where two or more executors are appointed to deal with the administration of a deceased’s estate they usually manage to get the job done. Sometimes, however, there can be a stalemate. The question of removing an executor may then arise, writes Paul Neilly.
Under Scots law there are three ways in which an executor may be removed from office:
1. There might be power under the terms of the deceased’s will for removal but this is unusual.
2. There is statutory power for the court to remove an executor under the Trusts (Scotland) Act 1921. This power only applies in certain situations: the court may remove an executor or trustee who is or becomes insane or incapable of acting by reason of physical or mental disability; or who is absent from the UK continuously for at least six months; or who has disappeared for the same period.
In the case of insanity or mental or physical incapacity, removal is automatic once the ground is established. In the case of an application on the ground of absence or disappearance for at least six months, removal is at the court’s discretion.
3. There is a ‘common law’ power for the court to remove an executor (or trustees) under what is called the nobile officium of the Court of Session.
The court must be satisfied that the beneficiaries would be prejudiced or the purposes of the will obstructed if the executor were to continue in office. This is quite a high test to meet.
The Scottish Law Commission has proposed reforms to modernise the way in which an executor may be removed. In essence, the Commission proposes that the statutory powers under the 1921 Act and the ‘common law’ grounds for removal of an executor should be replaced by new statutory provisions.
These should provide that an executor may be removed by the court, on application, if it is satisfied that he or she is unfit or unable to continue to act or they have neglected their duties as executor.
These would be welcome reforms, however the proposal was made by the Commission in 2014 and there is, as yet, no sign of its being taken forward.
If Mitchells Roberton Partner, Paul Neilly, can assist you please call direct on 0141 548 1723, or email: email@example.com.
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