When Executor Removal Is the Wrong Remedy
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Seeking an executor’s removal is an inappropriate way to secure a remedy
If you are considering legal proceedings against an estate, it is crucial to make the appropriate claim. In a recent case, an estate beneficiary asked the court to remove the executor named in the Will. The court refused because it was not the correct claim to have been made in the first place.
The decision is an important reminder for clients and their lawyers to ensure cases are properly pleaded, otherwise the claim will be rejected at significant cost to the parties.
Removal of executor
A co-executor or estate beneficiary can make an application to court to have an executor removed and, sometimes, replaced. Typically, this is appropriate where the executor has failed to comply with their legal duties and responsibilities or where conflicts of interest arise.
However, the court will only remove an executor if it is necessary to protect the beneficiaries and it is in the best interests of the estate. It will not remove an executor because of a clash of personalities; or because you simply don’t like them. By contrast, where an executor’s conduct genuinely threatens the proper administration of an estate, the court may intervene.
For an example of circumstances in which the court did remove an executor, see our article on successfully replacing a ‘hostile’ executor.
What happened in this case?
Woolls v Byrtt [2026] EWHC 1141 (Ch) involved a bitter dispute between the deceased’s two children. John Woolls died in July 2023, leaving a Will made a few months earlier appointing his daughter Lisa as his executor. His residuary estate was left to Lisa and his son, Martin, in equal shares.
During his latter years, Lisa had helped her father with financial matters and had been allowed to make certain withdrawals from his bank account. The evidence included a copy of a letter signed by John giving her permission to make withdrawals. She was added as a joint account holder a few weeks before his death.
Over the years, John had made several wills with professional assistance. However, the 2023 Will was weighted more generously towards Lisa than Martin compared to earlier ones. Lisa obtained the Grant of Probate and Martin entered a caveat against the estate.
He then made several allegations against Lisa, including misappropriating their father’s assets during his lifetime; and undue influence and/or fraudulent calumny in respect of the 2023 Will, and an earlier 2021 Will.
Martin eventually issued a claim under part 8 Civil Procedure Rules seeking Lisa’s removal, and the appointment of an independent professional solicitor. His central argument was that Lisa was not in any position to properly examine her own impugned conduct – an independent executor with legal advice was needed to do this.
Flawed argument
The judge rejected Martin’s argument as “flawed”. His remedy was to bring a probate claim, not to seek Lisa’s removal as an executor. Yet no probate claim has been brought and it will probably never be.
There was also the fact that John had appointed Lisa as executor, and his choice had to be respected.
Importantly, the judge found no evidence that Lisa had misused her powers as executor (or would do so) to frustrate a probate claim. Although she had agreed to repay £10,400 to the estate – money withdrawn to cover her time and expenses in managing her father’s properties – she had not knowingly breached her duties in taking this money. She now has legal advice and rectified what was a minor error and she did not need to be removed as executor.
To emphasise the position, the judge summarised the rights of an executor who has the grant:
“The Defendant has obtained a grant of probate and is entitled to exercise it, unless and until the Claimant commences probate proceedings seeking to have the grant set-aside and propounding an earlier will.
Pending determination of any such proceedings, the Defendant remains the duly appointed executor with fiduciary responsibilities in relation to the preservation and administration of the estate.”
What does this mean?
If you are involved in a dispute involving a deceased estate, it is important to understand the underlying cause of action and the remedy you may be seeking before you consider further steps.
An incorrectly pleaded claim could be financially disastrous, but can be avoided if specialist legal advice is taken from solicitors experienced in complex contentious probate claims.
Contact us
If you’re considering asking the court to remove an executor, it is important to take specialist advice before taking any steps. Osbornes experienced Contentious Probate team advises clients on complex estate disputes, ensuring the right claims are pursued from the outset to achieve the best possible outcome while avoiding unnecessary cost and delay. To get specialist legal advice, please contact us by:
- completing our online enquiry form;
- or calling us on 020 7485 8811
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