The Court removed the executor due to his failure to address a serious conflict of interest arising between his personal interests and his role as executor for a period of over ten years and also for the potentially substantial claims that the estate had against him.

Background:

Mr. Osborne died in June 2013 with a will dated November 2010. He appointed his children, Mr. Michel Osborne, Mrs. Patricia Howes, and Mr. John Osborne, as his executors. He bequeathed certain sums and chattels to members of his family and institutions and he devised that the residue should be distributed to his three children in equal shares. The bequests have all been paid but the residue of the estate has not been administered and distributed, although substantial distributions have already been made. In 2015, the estate distributed £180,000 to John and Patrica and £30,000 to Michel, the defendant.

The executors divided up the tasks associated with administrating the estate. Michel was charged with dealing with the deceased’s interest in W. Osborne & Co., the family-owned and operated accountancy practice in which he was associated with his father, the deceased’s property in France, and other investments.

The claimants filed a claim form in July 2021 under Civil Procedure Rules Part 8 seeking document disclosure. The defendant acknowledged service in August 2021 and stated that a counterclaim was submitted. Various hearings took place between 2022 and 2024. At one point, the claimants let the Court know of their intention to bring a claim under Section 50. In October 2024, the Section 50 claim was heard. By an order dated the 9th of January 2025, the District Judge adjourned the application.

An offer was made to settle the S.50 claim on the basis that all three parties had stepped down as executors, that an independent solicitors’ firm be appointed as executor, and that the claimant’s costs be paid out of the estate. The defendant refused and made a counter-offer wherein all three step down on the terms that £50,000 be paid to the claimants and £50,000 to himself on account of costs.

Decision:

The High Court held in favour of the claimants, noting that the defendant’s conflict of interest and failure to address it for a period of over ten years warranted his removal as an executor. The administration of the estate was deemed impossible without his removal. The Judge started by explaining that a “personal representative may be removed by the Court under the power conferred by S.50. This empowers the Court to appoint a person to act as a personal representative in place of one or all of the existing personal representatives or, if there are two or more personal representatives, to terminate the appointment of one or more, but not all, of them.” A personal representative may be removed without a finding of wrongdoing if the breakdown of relations makes their duties impossible.

One of the major issues in this case was the defendant’s reliance on a Letter of Wishes. The Court was unable to decide whether the letter was a genuine and authentic document. The fact that the letter bears the same date as the deceased’s will also raises questions as to why the gift was not simply included in the will itself. The Judge then noted that “The dispute over the authenticity of the Letter of Wishes gives rise to an actual conflict between the defendant's personal interest and his duty as an executor.”

The Court also found no credible evidence that the claimants agreed to the letter and noted the fact that the defendant had failed to seek legal advice, raising further doubts as to its authenticity. The Judge noted, “I am also satisfied that the test in Re Folkes is met and that the claimants have a real prospect of proving that the Letter of Wishes is not authentic or genuine.”

Implications:

While removing someone as executor may result in additional costs being incurred, in some situations, the need for proper administration and the best interests of the beneficiaries justifies such removal. This decision also highlights the importance of acting promptly and complying with an executor’s duties. Indeed, the Judge was suspicious of the Letter of Wishes, for various reasons, including the fact that the defendant was not proactive nor did he seek legal advice on it.