How to Challenge a Will for Breach of Duty by Executors

When someone dies leaving a will, the executors named in that will are responsible for administering the deceased's estate. Executors have legal duties to act impartially, in good faith, and in accordance with the will and relevant law. If an executor fails in those duties - for example by mismanaging assets, delaying distribution without good reason, or acting in their own interest rather than for the beneficiaries - affected parties may be able to challenge their conduct. This article explains what executor duties are, how breaches can arise, what legal options exist to challenge executor conduct, the procedures involved, potential risks, and practical guidance for anyone considering action.

What Is a Breach of Duty by Executors?

An executor has fiduciary duties: obligations to administer the estate honestly, competently and in the best interests of the beneficiaries, and to follow the instructions in the will. If these duties are not met, the executor may be said to have breached their duty. Common examples include:

• failing to apply for or obtain a grant of probate in reasonable time,
• delaying distribution of assets without justification,
• selling assets at undervalue or without proper authority,
• failing to secure or protect estate assets,
• neglecting to pay debts and taxes, or
• acting in their own personal interest rather than the estate's.

A breach of duty may harm beneficiaries financially, emotionally or both. Addressing such a breach often begins with understanding an executor's responsibilities in law.

Legal Duties of an Executor

An executor's role is to:

• register the death and obtain death certificates,
• secure and value the estate's assets,
• apply for a grant of probate,
• collect in money, property and belongings,
• pay valid debts and inheritance tax,
• prepare estate accounts, and
• distribute the estate in accordance with the will.

They must also:

• act impartially towards all beneficiaries,
• keep accurate records of actions taken and costs incurred,
• avoid conflicts of interest, and
• not vary the terms of the will unless permitted by law (for example through a deed of variation with beneficiary consent).

Failing to meet these duties can lead to liability. Beneficiaries who suffer loss because of breach of duty may have recourse through the courts.

Who Can Challenge an Executor?

Typically, people with a direct interest in the estate are able to challenge executor conduct. These include:

• beneficiaries under the will who are affected by the executor's actions,
• potential beneficiaries under intestacy rules if no valid will exists, and
• co‑executors who believe another executor is acting improperly or neglecting duties.

Anyone without a recognised interest in the estate is unlikely to have standing to bring a claim.

Steps to Challenge an Executor for Breach of Duty

1. Assessment and Evidence Gathering

Start by identifying specific concerns and gathering evidence. Important evidence could include:

• copies of correspondence with the executor,
• estate accounts or lack of them,
• valuation reports showing losses on asset sales,
• records of delays or failures to act, and
• details of any actions suggesting conflict of interest.

Beneficiaries are entitled to request information from executors, and a refusal can itself support a challenge.

2. Communicate Concerns

Before formal legal action, it is often advisable to raise concerns directly with the executor in writing, requesting explanation and disclosure of estate records. Many disputes can be resolved through clear communication, negotiation or alternative dispute resolution such as mediation.

3. Consider a Caveat or Citation

If probate has not been granted, a caveat may be entered with the Probate Registry to prevent a grant of probate while preparing a claim. If the executor has applied for probate but delays or is inactive, a citation can compel the executor to take specific actions, such as applying for probate.

4. Apply to the Court

If informal steps do not resolve the issue, legal proceedings may be necessary:

Apply for an Inventory and Accounts Order

A beneficiary can apply to the court to compel the executor to produce a full inventory of estate assets and detailed accounts of administration. This can reveal mismanagement or support further legal action.

Apply for Removal of the Executor

Under section 50 of the Administration of Justice Act 1985, the court can remove an executor if there is evidence of misconduct, inability to act, or if they are unsuitable for the role. Breaches such as prolonged delay, failure to provide accounts, or loss to estate assets are examples of grounds for removal.

Claim for Compensation

If an executor's breach has caused financial loss, beneficiaries can bring a civil claim for damages against the executor personally. This requires evidence that the executor's actions (or inactions) caused measurable loss.

Time Limits and Practical Considerations

There is no strict statutory deadline for bringing a claim based on executor misconduct, but acting promptly helps preserve evidence and reduces the risk of prejudice to your case. Delay can make it harder to demonstrate causation or quantify losses.

If the estate has already been distributed, beneficiaries may still have claims, but practical hurdles and costs are greater. Independent legal advice early in the process is strongly recommended.

Risks and Challenges

Challenging an executor can be costly, complex, and emotionally charged. Key risks include:

• legal costs that may exceed the value of losses,
• difficulty proving that actions were unlawful rather than poor judgment, and
• potential family discord.

Courts generally prefer disputes to be resolved without removal of executors where possible, especially if issues arise from inexperience rather than deliberate misconduct.

Common Questions from our Readers

Can I challenge an executor simply because I disagree with how they are administering the estate?
No. Disagreement alone is insufficient; there must be objective evidence of breach of duty, mismanagement, conflict of interest or similar legal wrongdoing.

What if the executor is also a beneficiary?
An executor who is also a beneficiary must still act impartially and cannot favour their own interests over other beneficiaries. If they fail to do so, this can be a basis for challenge.

Do I need a solicitor to challenge an executor?
While not strictly required, effective challenges usually involve complex legal and procedural steps. A solicitor specialising in contentious probate can help assess evidence, advise on strategy, and represent you in court proceedings.

Key Takeaways

Executors have legal duties to administer estates in good faith, impartially and in accordance with the will and relevant law. Breach of these duties - such as mismanaging assets, delaying administration, or acting for personal benefit - can harm beneficiaries and may be challenged through formal legal mechanisms. The process typically involves gathering evidence, communicating concerns, and potentially applying to the court for accounts, removal of the executor, or compensation for losses. Because of procedural complexity and the serious consequences involved, early specialist legal advice is essential.