Firms that refuse to step down as executor could face high legal costs

A case that recently reached the High Court has highlighted risks and high costs that can be faced by firms refusing to step down as executor.

In the case of WAG Davidson & Co, the deceased left an estate including a property to her grandson and an amount of £832,000 to her daughter. The firm WAG Davidson & Co had been appointed as executor, but the deceased’s daughter asked the firm to step down as executor as she felt that the administration was straightforward and preferred to administrate it herself.

Wag Davidson consequently refused to step down, and the case went to court for the deceased’s daughter to have the firm removed as executor. Over a two-year litigation period Wag Davidson appealed the request twice, but was unsuccessful and ordered to pay £25,000 in legal fees.

Commenting on the case, Julie Man TEP of solicitors Russell Cooke, says that the case is a reminder that such situations should be approached with care and that an appointment as a professional executor does not always result in a law firm acting as executor.

“It is not unusual for a professional executor to be asked to renounce their executorship and genuine consideration needs be given as to whether a professional executor should act, putting aside any financial gain”, she commented.

“You are not legally obliged to renounce, but you should ensure that you can illustrate that you have taken appropriate steps to show that you have fully considered whether it is appropriate to act.”

Man says that the best way to achieve this is by having procedures in place because, “not only will these help you reach a reasoned decision, but they will also demonstrate to the beneficiaries the matter has been properly dealt with.”

“A thorough consideration of the circumstances is needed: the initial appointment, the reasons why the deceased wanted to appoint a professional, their circumstances at the time the will was written, and the make-up of their estate. For more information, refer to the Law Society’s practice note and the Solicitors Regulation Authority guidance on will drafting and preparation.”

The Wag Davidson & Co case is a reminder that an appointment as a professional executor is simply a starting point, and that many issues should be considered before deciding whether a firm is appropriate in acting as executor, “some of these should be dealt with seriously at the time of instruction to prepare a will, others are necessarily subject to changes in circumstances between execution and death”, says Man.

Adding

“It is worth taking the time to create a detailed procedure to guide you in your decision-making at both points.”

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