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The executors and parties were brother and sister, both appointed equally with equal shares in the estate.
The deceased was the Mother of the brother and sister who had died some four years before in November 2011 and no grant of probate had been extracted as the claimant had issued a caveat against the will in May 2012.
The case highlights three main points, firstly that misconduct on the part of an executor does not automatically lead to their removal. Second it brings to the forefront issues regarding costs protection applications for the removal of executors and thirdly that the court will only bring the executor to account for devastavit (maladministration) in unusual circumstances.
In Wilby, HHJ Hodge QC found that ‘there had been a complete breakdown between the two appointed executors’. The Judge avoided making a finding of misconduct and indeed sought to criticise Mrs Wilby’s conduct in placing a caveat against the will which prevented the obtaining of the grant of probate and therefore the administration of the estate. The application to remove Mr Rigby as executor succeeded on the basis that ‘the two have no trust in each other, and I am satisfied that they cannot work together’.
The decision in the matter clarifies that the court’s focus may be diverted from the alleged misconduct of individual trustees and more focused towards a trustee’s continuing effort to discharge their functions for the benefit of the beneficiaries.
The judgment also deals with the court’s approach to costs. There were numerous attempts in the claimant camp to compromise and in Mrs Wilby’s attempts to reach settlement the proposal was that both executors stand down and be replaced by either Mrs Wilby’s son or an independent practitioner. The court ordered that Mr Rigby was to bear the entirety of Mrs Wilby’s costs as the defendant did not heed the suggestion of compromise. It is clear from this case that the court will expect parties to explore alternative solutions to their dispute and will reflect the willingness of parties to do so in costs orders.
The final aspect dealt with by this case is the consideration of the devastavit claim brought against Mr Rigby for the wasting of an asset of the estate. Mr Rigby had allowed the grandson of his partner to live in the deceased’s house without making any rent payment to the estate. The grandson also remained in the property until the date of the trial.
The court found that Mr Rigby was liable to account to the estate for the rental income which ought to have been generated by the property from November 2012 to date, at the market rent of £750.00 per month.
Myerson Solicitors LLP are experts in advising on probate disputes. We have lawyers who are accredited by the specialist Association of Contentious Trusts and Probate (ACTAPS) and regularly advise beneficiaries of negligently drafted wills.
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